J-S31012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VERNON R. WOMACK :
:
Appellant : No. 298 EDA 2017
Appeal from the Judgment of Sentence December 9, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004503-2016
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 09, 2018
Appellant, Vernon R. Womack, appeals from the December 9, 2016
judgment of sentence entered in the Philadelphia County Court of Common
Pleas following a jury trial. We affirm.
The trial court summarized the facts of the crimes as follows:
The Complainant in this case is 21-year-old Tyree Clark
(“[the] Complainant”), who was burglarized, robbed, and
assaulted inside his home at 3017 Euclid Avenue, Philadelphia,
Pennsylvania. The Complainant testified that in 2014 he moved
to Philadelphia from Altoona, Pennsylvania, to be with his
girlfriend (“Kaytlin”) who was pregnant with his son. The
Complainant originally lived in the city’s Germantown section with
his girlfriend and her mother, but he then moved to North
Philadelphia and lived at 3017 Euclid Avenue. The Complainant’s
girlfriend and son alternately lived in Germantown and at 3017
Euclid Avenue, and were staying in Germantown when the crimes
described below transpired. (N.T., 9/21/16, pgs. 23-25).
As well as working full-time in a warehouse, the
Complainant endeavored to sell music “instrumentals” and involve
himself in the music business. While marketing his instrumentals,
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the Complainant became acquainted with Appellant and [Shahid]
Abney, whom he knew respectively as “Vern” and “Heed.”
Appellant and Abney lived in the same neighborhood as the
Complainant and fashioned themselves as aspiring rappers.
During the month or two preceding the robbery, the Complainant
saw Abney almost every day hanging around the neighborhood of
31st and Berks Streets, and on weekends he saw Appellant
hanging around Abney in the same area. (N.T., 9/21/16, pgs. 25-
28).
On October 13, 2015, Appellant, Abney, and a male named
Juan went to the Complainant’s home to discuss “making music”
with the Complainant’s instrumentals. The two-story rowhome
had three bedrooms and the men discussed music in the
Complainant’s room, which contained a laptop, television,
speakers and other “music-making” equipment. (N.T., 9/21/16,
pgs. 28-30).
The next day, on October 14, 2015, the Complainant worked
at his regular warehouse job and then went home. Around 11:50
p.m. that evening, the Complainant received a phone call from a
number he did not recognize. The caller identified himself as
“Vern” and said he was with “Heed” and “wanted to come over
and make music.” The Complainant expressed reluctance
because it was late and he was working the next day, but he
ultimately said “okay” after Vern—i.e., Appellant—assured they
would not stay long and would finish with the instrumentals by
12:30 a.m. (N.T., 9/21/16, pg. 30-31).
Appellant called again a few minutes later and said he was
standing across the street from the Complainant’s home. After
looking out his bedroom window but not seeing anyone, the
Complainant walked downstairs, opened his front door, and
encountered Appellant and Abney standing on his front porch
wearing coats. Upon entering the Complainant’s home, both
Appellant and Abney pulled out “black semi-automatic” guns from
their coats and pointed them pointblank at the Complainant’s
head. (N.T., 9/21/16, pgs. 31-34).
Appellant and Abney ordered the Complainant upstairs to
his bedroom, demanded certain of his possessions, and
threatened to kill the Complainant if he lied about the
whereabouts of any items. Once inside the bedroom, Appellant
directed Abney to retrieve a belt from a closet and tie the
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Complainant’s hands behind his back. Abney then pulled down
the Complainant’s pants and removed his wallet and cellphone
from his pockets. Appellant meanwhile struck the Complainant’s
nose with the butt of his gun, causing a nosebleed. The
Complainant begged Appellant not to kill him because he has a
son, but Appellant replied that he “doesn’t give a fuck about the
Complainant’s son.” (N.T., 9/21/16, pgs. 34-36).
Appellant and Abney placed “a black sweater over the
Complainant’s face so he couldn’t see anything or breathe.”
Because the Complainant still bled from his nose, he was
“swallowing his own blood” that continued running down his face
beneath the sweater. Appellant and Abney then split apart the
two box springs composing the Complainant’s kingsized bed and
ordered the Complainant to lay down between them. The men
threw the bed mattress and a dresser on top of the Complainant,
further restricting not only his movement but his ability to
breathe. (N.T., 9/21/16, pgs. 36-38).
For the next half hour, Appellant and Abney rummaged
through both floors of the Complainant’s home, threatening to kill
him all the while. At one point Appellant and Abney pressed their
guns to the Complainant’s stomach and demanded the password
for his Iphone. Appellant and Abney also used their own
cellphones to photograph the Complainant’s identification and
social security card, and threatened to harm the Complainant’s
girlfriend and son if he informed the police. (N.T., 9/21/16, pgs.
38-39).
When they finished ransacking the home, Appellant and
Abney took all the money from the Complainant’s wallet except
$20,3 removed the Complainant from between the box springs,
told him to count 60 seconds while they left the premises, and
ordered him to then leave Philadelphia immediately. Pointing their
guns at the Complainant, Appellant and Abney threatened to kill
him if they ever saw him again. (N.T., 9/21/16, pgs. 39-41).
3 Appellant and Abney stole several items in addition
to cash, including the Complainant’s Iphone,
television and laptop. While testifying, the
Complainant was shown photographs of his home in
the aftermath of the robbery, and he identified where
the stolen items had been located. (N.T., 9/21/16,
pgs. 39, 42-45).
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After the intruders departed, the Complainant hastily
attempted to gather some of his remaining possessions, but
“everything was ruined..., ripped up and just out of place.”
Carrying only a toothbrush and toothpaste, the Complainant left
his home and went to a nearby Chinese store for help, but the
woman working inside the store “laughed” and “wouldn’t help”
him. The Complainant therefore walked to a shopping center
around five (5) blocks from his home, and a passerby allowed the
Complainant to use his phone. The Complainant first called his
girlfriend, who did not answer, and he then called a taxi for a ride
to where his girlfriend was staying in Germantown. (N.T.,
9/21/16, pgs. 45-49).
The Complainant arrived at the Germantown home around
2:00 a.m. and told his girlfriend about the incident. The
Complainant’s girlfriend called an ambulance and accompanied
the Complainant to Roxborough Hospital, where a doctor called
911. A police officer arrived around 3:00 a.m. and transported
the Complainant and his girlfriend to Central Detectives, where he
gave a statement to Detective Neil Goldstein. At the time, the
Complainant was unaware of the home invaders’ last names, so
he identified them by viewing Instagram photographs from the
accounts of mutual friends. (N.T., 9/21/16, pgs. 49-58).
Trial Court Opinion, 5/15/17, at 2–6 (some footnotes omitted).
The trial court also summarized the procedural history:
On September 20, 2016, a jury convicted Appellant of
aggravated assault (18 Pa.C.S. § 2702(a)(4)), robbery (18
Pa.C.S. § 3701(a)(1)(ii)), conspiracy to commit robbery (18
Pa.C.S. § 903), burglary (18 Pa.C.S. § 3502(a)(1)(i)), carrying a
firearm without a license (18 Pa.C.S. § 6106), carrying a firearm
on the public streets of Philadelphia (18 Pa.C.S. § 6108), theft by
unlawful taking (18 Pa.C.S. § 3921(a)), possessing an instrument
of a crime (18 Pa.C.S. § 907(a)), and terroristic threats (18
Pa.C.S. § 2706(a)(1)). On December 9, 2016, this [c]ourt
sentenced Appellant to seven (7) to fifteen (15) years [of]
incarceration for his robbery conviction, seven (7) to fifteen (15)
years [of] concurrent incarceration for his burglary conviction,
seven (7) to fifteen (15) years [of] concurrent incarceration for
his conspiracy conviction, and five (5) to ten (10) years [of]
concurrent incarceration for his aggravated assault conviction.
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This [c]ourt imposed no sentences for [Appellant’s] remaining
convictions[,] and his aggregate term of imprisonment is seven
(7) to fifteen (15) years.1
1 Appellant was tried jointly with Shahid Abney, whom
the jury found guilty of [multiple counts]. . . .
On December 18, 2016, Appellant filed a post-sentence
motion, which this [c]ourt denied on December 20, 2016. On
January 16, 2017, Appellant filed a notice of appeal with the
Superior Court, and on March 31, 2017, Appellant filed a
Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b).
Trial Court Opinion, 5/15/17, at 1–2.
Appellant raises the following issues on appeal:
A. Did the Commonwealth fail to prove that Appellant lacked
license or privilege to enter [Complainant’s] home?
B. Did the lower court fail to adequately state on the record its
basis for exceeding the sentencing guidelines maximum
recommended sentences?
Appellant’s Brief at 5.
Appellant’s first issue is a claim of insufficient evidence to support his
conviction of burglary. Appellant’s Brief at 12. In reviewing the sufficiency of
the evidence, we must determine whether the evidence admitted at trial and
all reasonable inferences drawn therefrom, viewed in the light most favorable
to the Commonwealth as verdict winner, were sufficient to prove every
element of the offense beyond a reasonable doubt. Commonwealth v.
Diamond, 83 A.3d 119 (Pa. 2013). “[T]he facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa.
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Super. 2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d
1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-finder to
determine the weight to be accorded to each witness’s testimony and to
believe all, part, or none of the evidence. Commonwealth v. Tejada, 107
A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 767
(Pa. Super. 2018). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).
The whole of Appellant’s argument is that he was “invited” into
Complainant’s home on the night of the burglary, and therefore, the
Commonwealth failed to prove that Appellant lacked license or privilege to
enter the home. Appellant’s Brief at 12, 13.1 His two-sentence argument,
completely lacking any references to the record or trial testimony, is deficient.
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (“The
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1 Appellant’s single sentence in his brief claiming that the Commonwealth
failed to establish that, at the time Appellant entered Complainant’s house, he
had “formulated the intent to commit a crime,” is waived. Appellant’s Brief at
13. Appellant did not raise this allegation in his Pa.R.A.P. 1925(b) statement;
the failure to include an issue in a Rule 1925(b) statement results in waiver.
Pa.R.A.P. 1925(b)(3)(iv); see also Commonwealth v. Castillo, 888 A.2d
775, 780 (Pa. 2005) (referring to the bright-line rule first set forth in
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), the Court held, “Any
issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”).
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Rules of Appellate Procedure require that appellants adequately develop each
issue raised with discussion of pertinent facts and pertinent authority. See
Pa.R.A.P. 2119. “It is not this Court’s responsibility to comb through the
record seeking the factual underpinnings of an appellant’s claim.” Samuel,
102 A.3d at 1005. Despite the lack of development of the issue, we address
it and rely upon the trial court’s thorough response to the claim, as follows:
“A person is guilty of burglary if he enters a building or
occupied structure, or separately secured or occupied portion
thereof, with intent to commit a crime therein unless the premises
are at the time open to the public or the actor is licensed or
privileged to enter.” Commonwealth v. Edwards, 588 Pa. 151,
167 (Pa. 2006) (citing 18 Pa.C.S. § 3502(a)). However, “the
license or privilege to enter exception recognized by the burglary
statute can be negated by deception.” Id.; Commonwealth v.
Sanchez, 623 Pa. 253, 302-303 (Pa. 2013) (“Any license or
privilege to enter a premises is negated when it is acquired by
deception.”); Commonwealth v. Cooper, 596 Pa. 119, 138 (Pa.
2007) (“A license or privilege to enter a premises is negated in
the event it is acquired by deception.”).
Here, the deception of Appellant and Abney clearly negated
any license they were given to enter the Complainant’s home. The
Complainant testified that near midnight on October 14, 2015,
Appellant called him and said he and Abney “wanted to come over
and make music.” The Complainant expressed reluctance
because it was late and he was working the next day, but he
relented after Appellant assured [him] they would not stay long
and would finish with the instrumentals by 12:30 a.m. A few
minutes later, the Complainant opened his front door and
encountered Appellant and Abney standing on his porch. Upon
entering the Complainant’s home, both Appellant and Abney
immediately pulled out “black semi-automatic” guns from their
coats, pointed them at the Complainant’s head, and launched their
crime spree. (N.T., 9/21/16, pgs. 31-34). The Complainant’s
testimony established that Appellant and Abney deceived the
Complainant into believing they had sought entry to his home to
“make music” with the Complainant’s “instrumentals,” when their
true purpose was to rob the Complainant.
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Trial Court Opinion, 5/15/17, at 11.
Thus, “to prevail on a burglary charge, the Commonwealth is required
to prove beyond a reasonable doubt that the offender entered the premises,
with the contemporaneous intent of committing a crime, at a time when he
was not licensed or privileged to enter.” Commonwealth v. Cooper, 941
A.2d 655, 666 (Pa. 2007) (citing Commonwealth v. Thomas, 561 A.2d 699,
704 (Pa. 1989)). “However, a license or privilege to enter a premises is
negated in the event it is acquired by deception.” Cooper, 941 A.2d at 666
(citing Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006)).
Appellant has completely ignored the fact that he entered the premises by
deception. Accordingly, we affirm the trial court’s determination that the
evidence was sufficient to sustain the conviction.
In his second issue, Appellant avers that the trial court imposed
“sentences above the recommended guideline range without putting an
adequate basis on the record.” Appellant’s Brief at 14. This issue presents a
challenge to the discretionary aspects of Appellant’s sentence. Challenges to
the discretionary aspects of sentencing do not entitle an appellant to review
as of right, and his challenge in this regard is properly viewed as a petition for
allowance of appeal. See 42 Pa.C.S. § 9781(b); Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987); Commonwealth v. Sierra, 752 A.2d
910 (Pa. Super. 2000). An appellant challenging the discretionary aspects of
his sentence must satisfy a four-part test. We evaluate: (1) whether Appellant
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filed a timely notice of appeal; (2) whether Appellant preserved the issue at
sentencing or in a motion to reconsider and modify sentence; (3) whether
Appellant’s brief includes a concise statement of the reasons relied upon for
allowance of appeal; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under the Sentencing
Code. Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super.
2013). An appellant must articulate the reasons the sentencing court’s actions
violated the sentencing code. Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010); Sierra, 752 A.2d at 912–913.
In the instant case, Appellant filed a timely appeal, the issue was
properly preserved in his post-sentence motion, and his brief contains a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence pursuant to Pa.R.A.P.
2119(f). Accordingly, we must determine whether Appellant has raised a
substantial question that the sentence is not appropriate under 42 Pa.C.S. §
9781(b). Moury, 992 A.2d at 170.
The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will allow the appeal 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. Sierra, 752 A.2d at 912–913. “[W]e cannot look beyond the
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statement of questions presented and the prefatory 2119(f) statement to
determine whether a substantial question exists.” Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (citation omitted). “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. Knox, 165 A.3d 925, 929 (Pa.
Super. 2017) (quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.
Super. 2005)).
This Court has held that claims of a sentencing court imposing a
sentence outside of the standard guidelines without stating adequate reasons
on the record presents a substantial question. Commonwealth v.
Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014); see also Commonwealth
v. Gooding, 818 A.2d 546, 553 (Pa. Super. 2003) (substantial question raised
where the appellant asserts the sentencing court failed to state reasons on
the record to justify an upward departure from the Sentencing Guidelines).
Thus, we conclude that Appellant’s claim presents a substantial question for
our review, and we will review the merits of Appellant’s challenge.
Our standard of review 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 order to establish that the sentencing
court abused its discretion, the defendant 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. The rationale behind
such broad discretion and the concomitantly deferential standard of
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appellate review is that the sentencing court is in the best position to
determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. To determine
whether the trial court made the proper considerations during
sentencing, an appellate court must, of necessity, review all of the
judge’s comments.
Commonwealth v. Luketic, 162 A.3d 1149, 1163 (Pa. Super. 2017).
Our careful review of the record reveals that the trial court did not abuse
its discretion in sentencing Appellant. The trial court acknowledged on the
record that it had a presentence investigation report (“PSI”). N.T.
(Sentencing), 12/9/16, at 6. The prosecutor placed on the record the
applicable provisions of the Sentencing Guidelines, Appellant’s prior record
score of zero, and the Commonwealth’s sentencing recommendations. Id. at
7–8. Additionally, the court heard from Ashley Jenkins, Appellant’s girlfriend,
and Yolanda Williams, Appellant’s sister. Id. at 12–14. The court also
received letters in support of Appellant from Appellant’s mother and
Appellant’s minister, Reverend Daniels. Id. at 17.
We note that sentencing courts are not bound by the Sentencing
Guidelines because they are merely advisory. Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted). The sentencing court
“may depart from the [G]uidelines if necessary, to fashion a sentence which
takes into account the protection of the public, the rehabilitative needs of the
defendant, and the gravity of the particular offense as it relates to the impact
on the life of the victim and the community.” Id. (internal quotation marks
and citation omitted).
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Before imposing sentence, the trial court explained its reasoning, as
follows:
In reviewing the presentence report, I note that [Appellant]
was raised by his mother who was a nurse and was the sole
financial support for five children. She provided a stable home
environment. [Appellant] had a close relationship with her,
granted his father was apparently abusive and was not a good role
model, but certainly his mother was. And unfortunately despite
that, [Appellant] dropped out of school in the ninth grade, perhaps
having some mental health issues, but that I think started a
downward spiral for [Appellant].
There was sporadic employment. Liberty Resources Home
Health Care, Superfresh, but more likely what has—had happened
was [Appellant] became involved in a lifestyle that leads to bad
choices.
There does seem to be a mental health history here in
accordance with the mental health evaluation. The diagnosis was
depressive disorder, opiate use disorder, and there was a
recommendation for mental health treatment as well as substance
abuse. [Appellant] admitted that he was taking Percocet up to four
times a week. Never participated in substance abuse [treatment].
He did get outpatient counseling at Fairmount and at Belmont and
diagnosed with depersonalization disorder, which probably—which
does make sense given the nature of the crime involved. And he
does have a zero prior record score.
Sitting through the trial as I did and listening to
[Complainant’s] testimony outlining what was a horrific, horrific
episode of violence and terror really without explanation. This
was a fellow who wanted to befriend you. Who thought that you
were a rapper that he wanted to become involved with to record
music with you, and what you did was turn around and victimize
him in such a shameful way. You set him up with Abney. You
both set him up, [Complainant]. He invites you into his home
where he lives with his young boy, his son. You pull—both pull
guns on him, threaten to kill him. Abney ties him up so now he’s
on the ground and you pistol-whip him. My goodness. Putting
him in absolute terror and fear for his life facing two guns pointed
at his head. He begged you not to kill him because he had a son
and your response was I don’t give a fuck.
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And while you hid out from police who were scouring the
city looking for you. You had the audacity to Facebook [the
Complainant] to try and convince him that you were still his friend
and you could still make music together if he only wouldn’t show
up in court. The brazen nature of your behavior, [Appellant], is
honestly breathtaking to me.
You don’t show any remorse, whatsoever. There’s not an
apology, there’s not any acceptance of responsibility. It is your
right to maintain your innocence, I certainly understand that,
however, the jury here found you guilty on each and every charge
filed. [The Complainant’s] victim impact statement is
heartbreaking. Certainly he will regret for his entire life what may
have just been a fool-hearty effort to kind of, maybe in his mind,
play with the big boys and be something that he wasn’t. He
learned a terrible lesson and certainly has had to relocate and
won’t even come into Philadelphia for this hearing. My job here,
[Appellant], is to balance what these people have said about you,
your sister and your girlfriend, and have written to me, and the
fact that you have no prior record balanced with the fact that you
have people who are willing to step up and support you and vouch
for your character in a very impressive way. However, what they
don’t see is what [the Complainant] saw.
N.T. (Sentencing), 12/9/16, at 23–26.
Upon review, we discern no lack of reasons for the sentence imposed or
abuse of the trial court’s discretion. Indeed, equipped with a PSI, a victim
impact statement, a mental health evaluation, letters from Appellant’s family
and friends, and in-court testimony from Appellant’s girlfriend and sister, the
trial court considered all necessary and relevant factors relating to Appellant’s
personal circumstances and characteristics. See Commonwealth v. Clarke,
70 A.3d 1281, 1287 (Pa. Super. 2013) (“Where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed that he or
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she was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”).
The trial court imposed individual sentences outside the guideline ranges
because defendant abused the Complainant’s trust, terrorized him during the
incident, attempted to prevent the Complainant from testifying before the
investigating grand jury, and did not show remorse or accept responsibility for
his actions. The trial court was not required to delineate each specific factor
that called for a sentence outside of the guideline range because the record
reveals that the court carefully considered the facts of the crime and
Appellant’s character. See Commonwealth v. Crump, 995 A.2d 1280, 1283
(Pa. Super. 2010) (“A sentencing court need not undertake a lengthy
discourse for its reasons for imposing sentence or specifically reference the
statute in question, but the record as a whole must reflect the sentencing
court’s consideration of the facts of the crime and the character of the
offender.”). Moreover, the trial court reaffirmed that while the sentences it
imposed were outside of the Guidelines, “they were imposed concurrently,”
and the court noted that it could have imposed consecutive guideline
sentences for robbery and burglary, which alone “would be greater than the
concurrent term of imprisonment that was imposed.” Trial Court Opinion,
5/15/17, at 17. We find no indication that the trial court ignored or misapplied
the law, exercised its judgment for reasons of partiality, prejudice, bias or ill
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will, or arrived at a manifestly unreasonable decision. Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/18
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Com. v. Womack, V.
Combined Opinion