J-S28032-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EMIRE ROSENDARY, :
:
Appellant : No. 1503 WDA 2016
Appeal from the Judgment of Sentence May 13, 2016
in the Court of Common Pleas of Erie County
Criminal Division, at No(s): CP-25-CR-0000036-2014
BEFORE: OLSON, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 10, 2017
Emire Rosendary (Appellant) appeals from the judgment of sentence
imposed after he was found guilty of robbery, conspiracy, possession of
instruments of a crime, and two counts of terroristic threats.1 We affirm.
Because of the issues raised herein, a full recitation of the factual and
procedural history is not necessary. Pertinent to this appeal, Appellant was
charged with, inter alia, the above-mentioned offenses from an incident that
1
As set forth by the trial court,
[t]he jury verdict slips for Counts Three, Four, Five, Six,
Seven[,] and Eight, indicate “Merged by Court – No Verdict” and
each verdict slip for these counts was signed by Judge Shad
Connelly on March 25th, 2015. Furthermore, the verdict slip for
Count Nine indicates “Judgement of Acquittal” and [was also
signed by Judge Connelly on March 25th].
Trial Court Opinion, 12/1/2016, at 2.
*Retired Senior Judge assigned to the Superior Court.
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occurred in December 2013. Specifically, Appellant was found guilty of
robbing a store at gunpoint and threatening the employees inside. Appellant
received an aggregate sentence of six and one half years to 13 years’
incarceration.2
Appellant timely filed a motion to modify and/or reconsider his
sentence on May 26, 2015. No hearing was held, and on May 29, 2015
Appellant’s motion was denied. No direct appeal was filed.
On May 11, 2016, Appellant filed pro se a petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Therein, Appellant
requested the reinstatement of his direct appeal rights nunc pro tunc.
Counsel was appointed, filed an amended petition, and following an
evidentiary hearing, the trial court granted Appellant’s request, directing
that he file a notice of appeal within thirty days, which he did. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant states the following issues for this Court’s
consideration:
1. Whether the sentencing court committed legal error and abused
its discretion in failing to afford due consideration and deference
to the mitigating factors presented and otherwise discernible on
behalf of the appellant?
2
Specifically, Appellant was sentenced as follows: Count 1, 36 to 72 months’
incarceration; Count 2, 42 to 84 months’ incarceration, to run consecutive to
count 1; Count 10, three to 24 months’ incarceration, concurrent to count
two; Count 11, six to 24 months’ incarceration, concurrent with count 10;
Count 12, six to 24 months’ incarceration, concurrent to count 10.
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2. Whether the sentencing court committed legal error and abused
its discretion in imposing a consecutive sentencing scheme
without a legally sufficient contemporaneous statement in
support of that sentencing election?
Appellant’s questions challenge the discretionary aspects of his
sentence. Accordingly, we bear in mind the following.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his [or her] sentence
must invoke this Court’s jurisdiction by satisfying a 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, 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.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Appellant filed timely a post-sentence motion and a notice of
appeal, and included a statement pursuant to Rule 2119(f) in his brief. We
now turn to consider whether Appellant has presented substantial questions
for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
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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) (citation and quotation marks omitted).
In his 2119(f) statement, Appellant set forth the following issues: “the
sentencing court failed to afford due weight and consideration to mitigating
factors presented by [Appellant.] Moreover, the [sentencing] court failed to
proffer a legally sufficient statement on the record in support of the
imposition of a consecutive sentence.” Appellant’s Brief at 4.
Upon review, we find Appellant’s first issue, alleging the sentencing
court failed to afford “due weight and consideration of mitigating factors”
does not raise a substantial question. See Commonwealth v. Disalvo, 70
A.3d 900, 903 (Pa. Super. 2013) (“[T]his Court has held on numerous
occasions that a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.”) (quoting Commonwealth
v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)). See also
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e
have held that a claim that a court did not weigh the factors as an appellant
wishes does not raise a substantial question.”).3
3
Moreover, the sentencing court had the benefit of a pre-sentence
investigation report (PSI). “Where the sentencing court had the benefit of a
[PSI], we can assume the sentencing court ‘was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.’” Commonwealth v.
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While the trial court’s failure to consider adequately mitigating factors
does not raise a substantial question for our review, Appellant’s averment
that the sentencing court “failed to proffer a legally sufficient statement on
the record in support of the imposition of a consecutive sentence[,]” does.
See Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super. 2016)
(Noting that an appellant raises “a substantial question for our review by
asserting that the trial court failed to state adequate reasons on the record
for [an a]ppellant’s sentence.”).
In support of this argument, Appellant avers that the record fails to
show that “the sentencing court afforded due and adequate consideration to
mitigating factors” at the time of sentencing. Appellant’s Brief at 5.
Appellant further argues that “the recitation of factors in support of the
imposition of consecutive sentences was insufficient” and that the court
erred in failing to provide “a legally sufficient contemporaneous statement in
support of the imposition of consecutive sentences.” Id.
Prior to imposing Appellant’s sentence, the sentencing court stated the
following:
[t]he [sentencing court] has considered the Pennsylvania
Sentencing Code, the [PSI] and the Pennsylvania guidelines on
sentencing. The [sentencing court] has considered the
statements made by [d]efense counsel, [Appellant], and the
attorney for the Commonwealth. The [sentencing court]
considered [Appellant’s] age, his background, his character and
his rehabilitative needs, the nature, circumstances and the
Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988)).
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seriousness of the offense, the protection of the community, the
impact the offense had upon the victims. The [sentencing court]
would acknowledge [Appellant’s] young age. The [sentencing
court] also notes that [Appellant’s] mother and father have
testified on behalf of [Appellant]
The fact that [Appellant] has pending charges, which there
has not been a preliminary hearing yet, will play very little or
none at all with the [court] in terms of its consideration today.
This offense, however, was serious. [Appellant] stuck a
gun in the victims’ faces, ordered them around the store with his
codefendant and showed little or no regard for their safety or
wellbeing. And it was pretty obvious, from the video, that the
victims were scared and rightfully so. And, in fact, as a result of
this offense, the one victim has noted in her statement that this
has had a sever[e] impact upon her. And, in fact, two of the
victims have quit the store because of this incident. And I
believe the other one has transferred to another position in
another store. So, this has significantly impacted at least two or
three people.
And it was pretty clear, from the video, that [Appellant]
did not show any concern or regard for his family while he was
engaged in his desire to take money that didn’t belong to him.
And the [court] is certainly aware, because the crime is on
tape, as to what [Appellant] did and how he did it.
The [sentencing court] also note[s] that [Appellant] has
shown remorse here today. And I don’t know what happened
prior to [Appellant’s] trial, but certainly there was no remorse or
responsibility taken by [Appellant] to the [court] before today.
I’m not sure, but I hope that [Appellant] sincerely means what
he has said about the victims and his crime and his actions, but
I’m not entirely convinced that also wasn’t to diminish his
sentence with the [court] here today. It will be up to [Appellant]
to prove, in the future, what kind of person he really is, but for
today’s purpose, he’s before the [court] as a criminal who has
committed serious felony offenses and he must face the
consequences of his decisions, his actions and his words in terms
of his threats to his victims during his crime.
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The [sentencing court] having considered all of those
things will order the following sentence which is of the standard
range of the Pennsylvania Sentencing Guidelines[.]
N.T., 5/13/2015, at 19-21.
In this case, prior to sentencing, the court provided a summary of
what it considered when fashioning Appellant’s sentence, which included
statements by Appellant and his family, as well as the PSI. We reiterate that
when a sentencing court has had the opportunity to review a PSI, “we can
assume the sentencing court ‘was aware of relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.’” Griffin, 65 A.3d at 937 (quoting Devers, 546
A.2d at 18). Despite this information, for the reasons given, the sentencing
court found that consecutive standard range sentences were appropriate.
We discern no abuse of discretion in the court’s determination.
Accordingly, after a thorough review of the record and briefs, we find
Appellant has presented no issue on appeal which would convince us to
disturb his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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