J-S25036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY GILLCRESE,
Appellant No. 1838 WDA 2014
Appeal from the Judgment of Sentence September 8, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0005907-2014
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 28, 2015
Appellant, Timothy Gillcrese, appeals from the judgment of sentence
imposed after his bench trial conviction of simple assault and summary
harassment.1 We affirm.
On June 10, 2014, the Commonwealth filed an information charging
Appellant with the aforementioned crimes for the assault of his ex-girlfriend
(the Victim). Specifically, Appellant struck the Victim in the face and
shoulder, and choked her. On September 8, 2014, the case proceeded to a
bench trial, at the conclusion of which the court convicted Appellant of
simple assault and summary harassment.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2701(a)(1) and 2709(a)(1), respectively.
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The same day, the court sentenced Appellant to six months’ house
arrest with work release, concurrent to two years’ probation. (See Order of
Sentence, 9/08/14, at 1). Appellant filed a post-sentence motion nunc pro
tunc, which the court denied on October 9, 2014. Appellant timely
appealed.2
Appellant raises one question for our review: “[Whether the]
sentencing court abuse[d] its discretion by imposing a sentence without
adequately addressing all required sentencing factors, such as the protection
of the public, and the gravity of the offense and its influence on the victim
and the community?” (Appellant’s Brief, at 6) (capitalization omitted).
Appellant’s issue challenges the discretionary aspects of his sentence,
which “must be considered a petition for permission to appeal.”
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation
omitted). To preserve claims relating to the discretionary aspects of a
sentence properly, an appellant must first raise them with the trial court.
See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008),
affirmed, 17 A.3d 332 (Pa. 2011).
Here, Appellant’s post-sentence motion alleged that his sentence of
house arrest was unreasonable where he has not contacted the Victim since
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2
Appellant filed a timely statement of errors on December 22, 2014
pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court filed an
opinion on January 15, 2015. See Pa.R.A.P. 1925(a).
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the incident, the Victim was not interested in him being incarcerated, and he
is not a threat to the community. (See Nunc Pro Tunc Post-Sentence
Motion, 9/23/14, at unnumbered page 3). Appellant did not raise the issue
of the trial court’s alleged failure to address “all required sentencing
factors[.]” (Appellant’s Brief, at 6; see also Nunc Pro Tunc Post-Sentence
Motion, 9/23/14, at unnumbered page 3). Therefore, we deem Appellant’s
claim waived. See Foster, supra at 163.
Moreover, the issue would not merit relief. We observe that:
When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to
the inappropriateness of the sentence. Two requirements must
be met before we will review this challenge on its merits. First,
an appellant must 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. Second, the appellant
must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. That is,
[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.
We examine an appellant’s Pa.R.A.P. 2119(f) statement to
determine whether a substantial question exists. 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.
Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (citations
omitted) (emphases in original).
In this case, Appellant filed a Rule 2119(f) statement, in which he
alleges that, when imposing sentence, the trial court failed “to adequately
consider all statutorily required factors set forth in 42 Pa.C.S.A. § 9721(b) of
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the Sentencing Code, such as the protection of the public, [] the gravity of
the offense[,] and how it impacted the victim and the community.”
(Appellant’s Brief, at 15; see also id. at 14-16). This issue raises a
substantial question. See Commonwealth v. Riggs, 63 A.3d 780, 786
(Pa. Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013).
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), appeal
denied, 63 A.3d 774 (Pa. 2013) (citation omitted). Moreover, “the
guidelines have no binding effect, create no presumption in sentencing, and
do not predominate over other sentencing factors—they are advisory
guideposts that are valuable, may provide an essential starting point, and
that must be respected and considered; they recommend, however, rather
than require a particular sentence.” Glass, supra at 727-28 (citing
Commonwealth v. Walls, 926 A.2d 957, 964-65 (Pa. 2007)).
Here, our independent review of the record reveals that, in formulating
Appellant’s sentence, the court considered the sentencing guidelines in
combination with other relevant factors. For example, it weighed Appellant’s
criminal record, the fact that he is a father, and that he works illegally as a
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jitney driver. (See N.T. Non-Jury Trial and Sentencing, 9/08/14, at 103-
04). In assessing Appellant’s character, the court found that he was not
credible, and that he was “telling whoppers.” (Id. at 117). The Victim
testified at sentencing that, since the attack, she is afraid whenever she is at
home and that she “just want[s] to feel safe for once.” (Id. at 106; see id.
at 105). The court observed that “[a] [forty-two]-year-old man resolves his
argument with his girlfriend by smacking her around and choking her. What
interest does the community have with that?” (Id. at 102-03). Finally, prior
to imposing sentence, the court considered the mitigating evidence that
Appellant and the Victim had a long history prior to this incident that did not
include any violence, and that Appellant had not attempted to contact the
Victim since the assault. (See id. at 109-10, 119).
Based on the foregoing, and our review of the record as a whole, we
conclude that Appellant has failed to establish that the trial court either
abused its discretion or committed an error of law in imposing his sentence.
See Glass, supra at 727. Therefore, even if not waived, his issue would
not merit relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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