Com. v. Carder, M.

J-S20020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MARCUS ANTONIO CARDER,

Appellant No. 984 WDA 2014

Appeal from the Judgment of Sentence May 14, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002048-2013

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MARCUS CARDER,

Appellant No. 1047 WDA 2014

Appeal from the Judgment of Sentence May 14, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000110-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED: MAY 1, 2015

In these consolidated cases, Appellant, Marcus Antonio Carder,

appeals from the judgments of sentence entered following his convictions of

burglary and criminal trespass at lower court docket number 0002048-2013,
J-S20020-15

and his conviction of criminal mischief at lower court docket number

0000110-2014. We affirm.

The trial court set forth the factual and procedural history of the case

at docket number 0002048-2013 as follows:

On March 13, 2014 a jury found [A]ppellant guilty of
burglary (Count 1) and criminal trespass (Count 5). The jury
was deadlocked on theft and robbery charges (Counts 2 and 4).
A charge of receiving stolen property was withdrawn (Count 3).
On May 14, 2014, this Court sentenced [Appellant] to serve a
period of confinement of 72 to 144 months at Count 1 and a
concurrent 16 to 32 month sentence at Count 5.

At trial, Ms. Zimeng Ren testified that on the date of the
incident, she was a student at Gannon University in Erie,
Pennsylvania. Ms. Ren, a native of China, was 22 years old at
the time. She lived in a small apartment located at 902 Myrtle
Street in the City of Erie. The apartment consisted of three
rooms including the bathroom. She had one chair in the kitchen.
As English is not her first language, most of her associates were
Chinese classmates. She knew few Americans. She had a very
limited social life. Generally, she stayed at home, or
occasionally ate at restaurants. She did not usually go out
alone. Trial Transcript, Day One, at 16 - 22.

On May 9, 2013, at approximately 4:30 a.m., she was
awakened when she heard a noise. She saw [A]ppellant
standing in her bedroom at the foot of the bed. She became
extremely frightened and offered [A]ppellant cash if he would
not hurt her. (She felt that if she spoke to him, it might keep
him from harming her.) [A]ppellant inquired how much money
she had and whether she had a wallet. She indicated that the
wallet was in the first drawer of her desk. However, when she
checked it was not there. It had contained credit and other
cards, over one hundred dollars in cash, her passport sheets and
passwords for her various accounts. Included was her PNC bank
card. She told [Appellant] that she had approximately three
thousand dollars in her checking account, but needed twenty-
four hundred dollars for tuition. In order to avoid any harm, she
wrote a check payable to [A]ppellant for six hundred dollars.
[A]ppellant spelled his name for her as she wrote out the check.

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During the encounter she asked [Appellant] if he had a gun, he
said “No”, said that he was strong and that he didn’t need it. To
demonstrate his strength [Appellant] lifted her up. [Appellant]
started to pull down his pants to show her that he did not have a
weapon. She asked him not to do so. He complied. [A]ppellant
remained at the premises for approximately two hours before he
left. Id. at 24 - 51.

Regarding the point of entry, there are three windows in
the apartment. One kitchen window had a broken lock and had
been open five to six inches to ventilate the apartment. It is
located very close to the kitchen door and it is possible to reach
the inside of the door from that window. Id. at 55 - 57; Trial
Transcript, Day Two at 28 - 29.

Ms. Ren reported the incident to the Gannon Police
Department. Erie Police Detectives Kenneth Kensill and Dennis
Soborsky testified. During the course of the investigation the
police obtained [A]ppellant’s picture and prepared a photo lineup
which was shown to Ms. Ren. She identified [A]ppellant
immediately. Id. at 35 - 36. She also provided a consistent
statement with respect to the events.

The defense presented testimony of a number of
witnesses, including [A]ppellant. Some of those witnesses
attempted unsuccessfully to place the alleged victim with
[A]ppellant prior [to] the event. However, there was no credible
evidence that she knew him. [A]ppellant went so far as to
indicate that [Appellant and Ms. Ren] had an intimate
relationship.

The sentence imposed on May 14, 2014 was in the
aggravated range of the sentencing guidelines for the reasons
set forth on the record.

On May 27, 2014, [A]ppellant filed a motion to modify
sentence and a post-trial motion. The former challenged the
discretionary aspects of sentence; the latter was a motion in
arrest of judgment and request for a new trial. On May 27,
2014, the motions were denied by this Court.

Trial Court Opinion, 8/7/14, at 1-3 (footnote omitted).

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The trial court set forth the factual and procedural history of the case

at docket number 110-2014 as follows:

[A]ppellant was charged with one count of criminal
mischief as a misdemeanor of the second degree arising out of
an incident that occurred on August 29, 2013. On May 12,
2014, after a one-day jury trial, [Appellant] was found guilty.
On May 14, 2014, he was sentenced by this Court to serve a
period of incarceration of 12 to 24 months.1
1
On that same day [A]ppellant was sentenced on an
unrelated charge at Docket 2048 - 2013. That case
is also on appeal.

At trial, Monica Carrol, an employee of the Erie County
Prison testified for the Commonwealth. She serves as the
Inmate Service Coordinator of the prison and monitors the use
of the law library. Trial Transcript at 16 - 17. She explained the
process that inmates use with respect to that aspect of their
confinement. Id. at 18 - 20. She is quite familiar with
[A]ppellant and knew that he was incarcerated in July and
August of 2013. He used the law library on a weekly basis, as
well as her notary services. She was also familiar with his
handwriting which is quite distinctive. Id. at 21 - 22.

On or about August 28, 2013, she received an anonymous
tip that [A]ppellant was damaging prison law books by tearing
[pages] out of them (see Commonwealth’s Exhibit 1).2
Specifically, it was alleged that [A]ppellant was tearing pages
out of the books. Id. at 23 - 24. She relayed this information to
Captain Seymour who made a copy of the note.
2
The exhibit designation is to the trial exhibits.

Ms. Carrol pulled [A]ppellant’s library requests for the prior
two weeks and examined the books that he had requested. She
found that there were pages missing. She passed this
information onto [sic] Captain Seymour. Id. at 25 - 27. On
August 29, 2013, prison officials conducted a search of
[A]ppellant’s cell. Various papers were seized, including pages
from the books which had been examined by Ms. Carrol.

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Sergeants John Kendziora and Michael Kudlak testified for
the Commonwealth concerning the search of [A]ppellant’s cell.
Id. at 62 - 74 (Kendziora), 90 - 91 (Kudlak). Kudlak also
testified concerning [A]ppellant’s habits while incarcerated. Id.
at 86 - 89. At the time of the search, [A]ppellant was
confronted with the pages that had been torn from the books
and was told by Sergeant Kudlak that he would be charged.
[A]ppellant’s response was: “I don’t give a fuck”. Id. at 92.
Exhibits corroborated [A]ppellant’s access to the books as well
as the damage. See Commonwealth’s Exhibits 2A - 2E. Ms.
Carrol testified that the damages rendered the books unusable
and expressed an opinion that the amount of the loss was
$4,695.46. Id. at 37 - 41. On May 27, 2014, [A]ppellant filed a
motion for post-sentence relief which was denied the same day.
This appeal followed.

Trial Court Opinion, 7/30/14, at 1-2.

As previously indicated, on May 14, 2014, the trial court sentenced

Appellant to serve a term of incarceration of seventy-two to 144 months for

his conviction of burglary and a concurrent term of incarceration of sixteen

to thirty-two months for the conviction of criminal trespass. Also on May 14,

2014, the trial court sentenced Appellant to serve a consecutive term of

incarceration of twelve to twenty-four months for his conviction of criminal

mischief. Appellant filed timely post-sentence motions in both matters on

May 27, 2014, which the trial court denied by orders dated that same day. 1

____________________________________________

1
We note Appellant needed to file his post-sentence motions on or before
Tuesday, May 27, 2014, because May 24, 2014 was a Saturday, and
Monday, May 26, 2014 was the Memorial Day holiday. See 1 Pa.C.S. §
1908 (stating that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation).

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Appellant then filed the instant timely appeals, which have been

consolidated.

Appellant presents the following issues for our review:

The verdict in the burglary case was against the weight of the
evidence in that there was no evidence of forced entry and the
only [sic] the verdict in this case was against the weight of the
evidence in that the victim did not testify that the crime took
place.1
1
The sufficiency of the evidence claim raised in
[both Appellant’s post-sentence motion and
Pa.R.A.P. 1925(b) statement] is being dropped, as
both sufficiency of the evidence and weight of the
evidence cannot be argued simultaneously, since an
argument regarding weight assumes that the
evidence was sufficient.

The conviction for criminal mischief was not based on sufficient
evidence, as the Commonwealth’s chief witness testified that she
did not know who ripped the pages from the books[.]

The sentences in this case were manifestly excessive and clearly
unreasonable when the court sentenced him in the aggravated
range without providing sufficient reasons for the sentence on
the record and when the sentences were run consecutively[.]

Appellant’s Brief at unnumbered pages 2-3 (full capitalization omitted).

Appellant first argues that the verdict for his conviction of burglary was

against the weight of the evidence. Specifically, Appellant contends that his

version of events, i.e., that he was personally involved with the victim and

therefore entered her home with consent, was more credible than the

victim’s version of events.

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In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Widmer, 560
Pa. 308, 319, 744 A.2d 745, 751-52 (2000); Commonwealth
v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Widmer, 560 A.2d at 319-20,
744 A.2d at 752. Rather, “the role of the trial judge is to
determine that ‘notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.’” Id. at 320,
744 A.2d at 752 (citation omitted). It has often been stated that
“a new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Brown, 538 Pa. at 435, 648
A.2d at 1189.

An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:

Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of

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the evidence and that a new trial should be granted
in the interest of justice.

Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:

The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.

Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
(1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

Our review of the record reflects that the trial court addressed each of

Appellant’s challenges to the weight of the evidence and determined that

they lack merit. Specifically, the trial court stated the following with regard

to Appellant’s challenge to the weight of the evidence supporting his

conviction of burglary:

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There is no question that the Commonwealth’s case was
based primarily upon the testimony of [Ms.] Zimeng Ren.
However, her testimony was credible and clearly established
[A]ppellant’s culpability.

In order to establish the offense of burglary, the
Commonwealth was required to show that [A]ppellant entered
her apartment without Ms. Ren’s permission with the intent to
commit a crime. See 18 P[a].C.S.A. §3502 (a)(1). Ms. Ren’s
testimony, as well as the police investigation, indicated that
[A]ppellant unlawfully entered her apartment, more than likely
by unlatching the inside kitchen door and committed the offense
of theft. Furthermore, the victim’s testimony established the
elements of criminal trespass as it proved that [A]ppellant
entered into the apartment without permission. See 18
Pa.C.S.A. §3503 (a)(1)(i). In addition to Ms. Ren’s trial
testimony, the Commonwealth also introduced evidence that she
picked [A]ppellant’s photo from the photo identification lineup.
Her testimony standing alone, if believed by the jury, was
sufficient to establish [A]ppellant’s guilt beyond a reasonable
doubt. See Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa.
Super. 1978). (A positive identification by one witness is
sufficient to sustain a conviction.) Moreover, the jury’s verdict
does not shock one’s conscience. Therefore, this Court did not
err when it denied [A]ppellant’s motion in arrest of judgment
and for a new trial.

Trial Court Opinion, 8/7/14, at 5.

The jury, sitting as the finder of fact, was free to believe all, part, or

none of the evidence against Appellant, as was its right. The jury weighed

the evidence and concluded Appellant perpetrated the crimes of burglary

and criminal trespass. This determination is not so contrary to the evidence

so as to shock one’s sense of justice. We decline Appellant’s invitation to

assume the role of fact finder and to reweigh the evidence. Accordingly, we

conclude that the trial court did not abuse its discretion in determining

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Appellant’s weight of the evidence claim, in this regard, lacked merit. Thus,

this claim fails to provide Appellant relief.

In his second issue, Appellant argues that there was insufficient

evidence to support his conviction of criminal mischief. Basically, Appellant

contends that the Commonwealth failed to establish that he was the person

who actually damaged the books from the law library.

When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed

sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. In addition, this Court may

not substitute its judgment for that of the fact finder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

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Criminal mischief is defined, in relevant part, as follows:

§ 3304. Criminal Mischief

(a) Offense Defined. -- A person is guilty of criminal mischief if
he:

***

(5) intentionally damages real or personal property
of another …

18 Pa.C.S. § 3304(a)(5).

The trial court offered the following analysis with regard to Appellant’s

challenge to the sufficiency of the evidence to support the conviction of

criminal mischief:

Here, the Commonwealth was bound to prove beyond a
reasonable doubt that [A]ppellant intentionally damaged real or
personal property of another. See 18 Pa.C.S.A. § 3304(a)(5). It
established through the testimony of its witnesses that the books
belonged to the Erie County Prison, [A]ppellant had access to
them, they were damaged and that [A]ppellant was found in
possession of pages taken from the books. It also established
the monetary value of the damage. Therefore, both the direct
and circumstantial evidence established [A]ppellant’s guilt
beyond a reasonable doubt. Accordingly, the jury’s verdict was
supported by more than ample evidence. Therefore, this Court
did not err when it denied [A]ppellant’s motion for judgment of
acquittal.

Trial Court Opinion, 7/30/14, at 4.

Our review of the record reflects that the Commonwealth presented

evidence from the librarian of the law library that Appellant used the law

library on a weekly basis, and books requested by Appellant had been

damaged due to pages missing, which rendered the books unusable. In

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addition, the Commonwealth presented evidence that a search of Appellant’s

cell revealed the missing pages from various damaged law books. This

evidence presented at trial, although circumstantial, was sufficient to prove

that Appellant intentionally damaged the personal property of another.

Indeed, the jury, sitting as the finder of fact, was free to believe all, part, or

none of the evidence presented. Hence, we affirm Appellant’s conviction of

criminal mischief.

In his third issue, Appellant argues that the trial court abused its

discretion in imposing the sentences in these cases. It is well settled that

there is no absolute right to appeal the discretionary aspects of a sentence.

Hartle, 894 A.2d at 805. Rather, an appellant’s appeal should be

considered to be a petition for allowance of appeal. Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

As we observed 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 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).

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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 a sentence is a question to be evaluated on a case-by-

case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001). As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant 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

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).

Herein, the first three requirements of the four-part test are met;

Appellant brought an appropriate appeal, raised the challenge in his post-

sentence motion, and included in his appellate brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether

Appellant has raised a substantial question requiring us to review the

discretionary aspects of the sentence imposed by the trial court. In so

doing, we cannot look beyond the statement of questions presented and the

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prefatory 2119(f) statement to determine whether a substantial question

exists. Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super.

2012) (citing Commonwealth v. Jones, 629 A.2d 133 (Pa. Super. 1993)).

Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that

the sentencing court abused its discretion in imposing a manifestly excessive

sentence that was not individualized. Appellant’s Brief at unnumbered page

10. We have held that a claim that the trial court abused its discretion in

imposing a manifestly excessive sentencing that was not individualized

raises a substantial question. See Commonwealth v. Simmons, 56 A.3d

1280, 1286 (Pa. Super. 2012) (finding a substantial question in the

defendant’s claim that his sentence was manifestly excessive because the

trial court failed to issue an individualized sentence). In addition, Appellant

claims that the sentencing court failed to set forth adequate grounds for

imposing a sentence within the aggravated range of the sentencing

guidelines. Appellant’s Brief at unnumbered page 11. Likewise, we have

held that a claim that the sentencing court imposed a sentence in the

aggravated range without placing adequate reasons on the record raises a

substantial question. Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa.

Super. 2004) (citing Commonwealth v. Brown, 741 A.2d 726 (Pa. Super.

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1999)). Accordingly, because Appellant has stated substantial questions, we

will consider his discretionary aspects of sentencing challenges on appeal. 2

We reiterate that 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. Commonwealth v. Fullin, 892 A.2d

843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is not

shown merely by an error in judgment. Id. 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.

Id. Appellate review with respect to a sentence within the guidelines is

whether the sentence is “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).

Indeed, the sentencing judge has broad discretion in determining the

proper penalty, and this Court accords the sentencing court great deference,

as it is the sentencing court that is in the best position to view the

defendant’s character, displays of remorse, defiance, or indifference and the
____________________________________________

2
We note that within the argument section of Appellant’s brief, he contends
that the sentencing court imposed a manifestly excessive sentence when the
sentences were run consecutively. Appellant’s Brief at unnumbered pages
13, 17. However, this issue is waived due to Appellant’s failure to
specifically include the claim in his Pa.R.A.P. 2119(f) statement.
Provenzano, 50 A.3d at 154. See also Commonwealth v. Burton, 770
A.2d 771, 785 (Pa. Super. 2001) (declining to review claim that sentencing
court used incorrect prior record score, where issue was presented in
argument portion of the appellant’s brief but omitted from Pa.R.A.P. 2119(f)
statement).

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overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007) (quotations and citations omitted). 3 When imposing a

sentence, the sentencing court must consider “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). As we have stated, “a court is required to consider the

particular circumstances of the offense and the character of the defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In

particular, the court should refer to the defendant’s prior criminal record, his

age, personal characteristics and his potential for rehabilitation.” Id.
____________________________________________

3
The Walls Court instructed the following:

In making this “unreasonableness” inquiry, the General
Assembly has set forth four factors that an appellate court is to
consider:

(d) Review of the record.—In reviewing the record the appellate
court shall have regard for:

(1) The nature of the circumstances of the offense
and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to
observe the defendant, including any pre-sentence
investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Id. at 963.

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Essentially, Appellant contends that, even after counsel pointed out

various mitigating factors, the sentencing court imposed unreasonable and

excessive sentences in the aggravated range of the sentencing guidelines

without providing sufficient reasons for the sentences imposed. Appellant’s

Brief at unnumbered pages 15-17.4 For the reasons which follow, this claim

lacks merit.

Our review of the record reflects that the sentencing court reviewed a

presentence report, received letters from members of Appellant’s family,

heard from Appellant’s attorneys regarding mitigating circumstances and a

request that the sentences be imposed concurrently, heard Appellant

challenge the trial court’s subject matter jurisdiction, and listened to the

Commonwealth’s request for consecutive sentence. N.T., 5/14/14, at 5-13.

Thereafter, the sentencing court made the following statement:

THE COURT: All right, thank you. Well, I’ve considered a
number of things here. The pre-sentence investigative report in
____________________________________________

4
We observe that the argument section of Appellant’s brief contains the
following heading, which is followed by no pertinent argument:

THE SENTENCES IN THIS CASE WERE MANIFESTLY EXCESSIVE
AND CLEARLY UNREASONABLE WHEN THE COURT SENTENCED
HIM IN THE AGGRAVATED RANGE WITHOUT PROVIDING
SUFFICIENT REASONS FOR THE SENTENCE ON THE RECORD
AND WHEN THE SENTENCES WERE RUN CONSECUTIVELY[.]

Appellant’s Brief at unnumbered page 13. Because there is no argument
pertaining to this heading, we conclude that the placement of the heading
was a typographical error, and we consider that this heading more properly
belongs on unnumbered page 15 of Appellant’s brief.

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its entirety, and I’m going to make it part of the record, the
Pennsylvania Sentencing Code and all its factors, the guidelines
as they apply to these cases. The letters that were submitted on
behalf of and in support of [Appellant]. And I’m going to make
those a part of the record and attach them to the pre-sentence
report.

I’ve also considered the fact that [Appellant] does have
family and community support as he appears before the court
today. I’ve also considered the various statements made here
by the attorneys and also [Appellant’s] brief statement relative
to his challenge as to jurisdiction. He – [Appellant] sent a letter
that he has sent to a number of people, including the Court, the
Attorney General and has made a number of claims as to
jurisdiction. There’s no motion before the Court, but basically
what [Appellant] has been doing – And I think maybe I should
set him straight right now because he obviously does not
understand the law in this area with all due respect to his
intelligence. He’s arguing that there basically is no authority to
prosecute him. He’s saying that when the Commonwealth of
Pennsylvania amended the Constitution in 1968, he neglects to
talk about the amendments in 1973 and ’74, that there was no
savings clause which permitted or provided for the authority to
prosecute criminal cases. He also argues the subject matter of
jurisdiction in that regard, and he argues that the District
Attorney’s Office has no real authority to prosecute. And
basically those claims are meritless.

So for your education, sir, if you would have looked up the
schedule to the Constitutional amendments . . ., clearly there
was a savings clause.

***

Now let’s talk about what you did and this is what you’re
going to be sentenced on today. First of all the burglary and the
criminal trespass, those particular offenses in my mind were
absolutely heinous. That young victim, who had English as a
second language[,] is a guest in our country, was severely
victimized by you when you entered into her house without
permission and you stayed there. And that young girl was
afraid. That came out clearly at the trial.

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In addition, the most recent offense involving the law
library, again, I think just goes to your arrogance. You had a
perfect right to use the law library. They accommodate you and
other inmates over there, even when it’s making ridiculous
arguments, you have access to the books and the resources and
that’s the law, the law provides for that. Here what you did is
you tore the pages out of the book, you ruined it for the other
inmates there. I[t] was just an absolutely selfish act and a
destructive act. And law books are expensive. As President
Judge I get involved in budgetary matters. I know how much
these things cost. And you ended up damaging the County in
the amount of 4,000 and some dollars. And that’s the taxpayers
that are paying for that. And, you know, so it is a serious
offense. It’s not the crime of the century, I’ll grant you that.
But it is a serious offense. And again it goes to your arrogance.

And to top it all off, you commit these offenses not only
with a prior criminal record, but while you [are] on state
supervision. Under a very severe sentence that I believe was
imposed by, now Senior Judge, Judge Bozza of this Court. So
frankly, I think that even where you are in your life today you
still have some rehabilitative potential, but you’ve got a bad
attitude. You’ve got an arrogant attitude and it’s pretty much
you feel you can do what you want to do, when you want to do
it, and the feelings or the rights of other people be damned. And
so you’re going to get sentenced accordingly for what you did.

N.T., 5/14/14, at 13-17.

Upon review of the record, we conclude that the sentencing court

presented adequate reasons for imposing the aggravated range sentences

upon Appellant that were appropriately individualized. There is no indication

that the trial court ignored any relevant factors in fashioning the sentence.

Rather, the sentencing court’s focus was properly upon Appellant’s behavior

during the commission of the crimes. Accordingly, it is our determination

that there was no abuse of discretion on the part of the sentencing court.

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Thus, we conclude this claim lacks merit. Based on the foregoing, we affirm

the judgment of sentence.

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/1/2015

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