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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEX LEE CRABBE :
:
Appellant : No. 1696 MDA 2018
Appeal from the Judgment of Sentence Entered May 7, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005551-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEX LEE CRABBE :
:
Appellant : No. 1697 MDA 2018
Appeal from the Judgment of Sentence Entered May 7, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004955-2017
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 09, 2019
Appellant, Alex Lee Crabbe, appeals from the judgments of sentence
entered on May 7, 2018, in the Lancaster County Court of Common Pleas
following his February 12, 2018 guilty pleas to simple assault, terroristic
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* Retired Senior Judge assigned to the Superior Court.
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threats, and stalking1 on Docket Number 4955 of 2017, and two counts of
intimidation of a witness2 on Docket Number 5551 of 2017. We affirm.
The trial court deferred sentencing pending receipt of a pre-sentence
investigation (“PSI”) report. On May 7, 2018, the trial court imposed an
aggregate sentence of incarceration of three to six years followed by five years
of probation.3 Order, 5/7/18. Appellant filed timely motions to reconsider
sentence, which were denied by operation of law on September 26, 2018.
Appellant filed timely separate notices of appeal that were consolidated by
stipulation pursuant to Pa.R.A.P. 513 on October 30, 2018. The trial court did
not order the filing of a statement pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following single issue on appeal:
Considering the Sentencing Code as a whole, was the
sentence imposed was [sic] unreasonable, excessive, and an
abuse of discretion where the court did not adequately consider
the individual history and character of the Appellant nor the
rehabilitative needs of the Appellant?
Appellant’s Brief at 7.
Appellant’s issue relates to the discretionary aspects of his sentence. A
defendant may challenge the discretionary aspects of sentencing if the plea
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1 18 Pa.C.S. §§ 2701, 2706, and 2709.1, respectively.
2 18 Pa.C.S. § 4952.
3 In its Pa.R.A.P. 1925(a) opinion, the trial court erroneously described the
sentence as three to five years of incarceration followed by three years of
probation. Trial Court Opinion, 11/14/18, at 2.
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agreement contains no sentencing restrictions, as herein. Commonwealth
v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). It is well settled that a challenge
to the discretionary aspects of a sentence is a petition for permission to
appeal, as the right to pursue such a claim is not absolute. Commonwealth
v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014). “An appellant must
satisfy a four-part test to invoke this Court’s jurisdiction when challenging the
discretionary aspects of a sentence,” by (1) preserving the issue in the court
below, (2) filing a timely notice of appeal, (3) including a Rule 2119(f)
statement, and (4) raising a substantial question for our review.
Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015) (citation
omitted); Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
Herein, the first three requirements of the four-part test are met:
Appellant brought a timely appeal 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). Appellant’s Brief at 11–13.
Moreover, Appellant preserved the issue by filing post-sentence motions.
Therefore, we next determine whether Appellant raised a substantial question
requiring us to review the discretionary aspects of the sentence imposed by
the trial court.
The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will grant the appeal 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. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015).
Appellant submits that the sentence was excessive, and the trial court
failed to consider Appellant’s rehabilitative needs. Appellant’s Brief at 12. We
conclude that Appellant’s challenge to the imposition of his sentence as
excessive, together with his claim that the trial court failed to consider his
rehabilitative needs, presents a substantial question. See Commonwealth
v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (excessive sentence claim,
in conjunction with assertion that sentencing court failed to consider
mitigating factors, raises a substantial question). Thus, we grant Appellant’s
application for allowance of appeal and address the merits of this sentencing
claim. Caldwell, 117 A.3d at 770.
Appellant asserts that the trial court did not “weigh all mitigating and
aggravating factors in arriving at an appropriate sentence . . . .” Appellant’s
Brief at 17. He maintains that the trial court gave “little consideration . . . to
the individual character” of Appellant. Id. at 18. The record reflects
otherwise.
At sentencing, the trial court noted that its imposition of sentence
included careful consideration of the PSI report. N.T., 5/7/18, at 9. When a
PSI report exists, this Court presumes that the trial court “was aware of
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relevant information regarding the defendant’s character and weighed those
considerations along with the mitigating statutory factors.” Commonwealth
v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016). “The sentencing judge
can satisfy the requirement that reasons for imposing sentence be placed on
the record by indicating that he or she has been informed by the pre-
sentencing report[,] thus properly considering and weighing all relevant
factors.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citation omitted). The trial court emphasized that it was “fully
informed” by Appellant’s PSI Report in its Pa.R.A.P. 1925(a) opinion. Trial
Court Opinion, 11/14/18, at 6.
At the sentencing hearing, the trial court noted the following:
This is a very troubling prior record history. And while prior
offenses involving this victim are certainly troubling, as for the
probation violations of all of . . . these various dockets, some
involving this victim, others not, others are unrelated offenses.
Before me is a repetition of simple assault, terroristic threats and
stalking, which were in 2014 and 2015—or rather 2016. Same
offenses involving the same victim. And this time, despite very
simple, very clear set of bail conditions; first to refrain from
engaging in contact that results in intimidation of a witness; and
second, no contact whatsoever with the victim, we end up with a
second set of charges for intimidation of a witness. And that is
extraordinarily serious to me. There is a pattern of ungoverned
behavior.
There have been opportunities to come to terms with a
failed relationship, and drug and alcohol, substance abuse, anger,
and mental health issues dating back to, at a minimum, 2015,
when the 2014 set of simple assault, terroristic threat and public
drunkenness were before the [c]ourt. So this excessive
persistence concerns me. And everything in the history here
shows a propensity to violate. And whether that’s only when
intoxicated or not, I don’t know because I’m not a mind reader,
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but certainly it is clear from the history that alcohol does play a
part.
And strict supervision and strict treatment in a structured
setting is going to be absolutely necessary until that point that
you own your own responsibilities for your behavior and accept
that alcohol is not a healthy part of life for you.
Because this is the third set of charges with the same victim,
following a history going back to 2015, where so much of this
could have been dealt with this and both these sets of charges
avoided.
N.T., 5/7/18, at 8–9.
In its Rule 1925(a) opinion, the trial court explained that the sentence
it imposed was “consistent with [Appellant’s] rehabilitative needs, the
protection of the public, and the gravity of the offenses as they relate to the
victims and the community. Great consideration was given to [Appellant’s]
situation and the circumstances surrounding it, which is evidenced by the
record.” Trial Court Opinion, 11/14/18, at 6–7. The court acknowledged
Appellant’s desire to relocate to Maryland and his “comments regarding his
desire to be a dad and help take care of his children,” in addition to “the
progress he alleges to have made while incarcerated in Lancaster County
Prison,” but “concluded that the facts and circumstances surrounding
[Appellant] and this case warranted the sentence imposed.” N.T., 5/7/18, 9;
Trial Court Opinion, 11/14/18, at 7.
Herein, the record establishes that the trial court gave substantial
consideration to all of Appellant’s circumstances. A PSI report was ordered,
prepared, and considered. The court considered the sentencing guidelines,
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the protection of the public, the gravity of the offenses, the impact on the
victim, and the rehabilitative needs of Appellant. We will not re-weigh those
factors and impose our judgment in place of the sentencing court.
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009).
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/09/2019
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