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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
FRANK CASIANO, : No. 3560 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, November 5, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0013060-2012
BEFORE: BOWES, J., OTT, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 19, 2017
Frank Casiano appeals from the November 5, 2015 aggregate
judgment of sentence of 20 to 40 years’ imprisonment, followed by 20 years’
probation, imposed after he pled guilty to aggravated assault, burglary, and
criminal conspiracy.1 After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows:
The incident in this case took place on May 6,
2012. The victim in this case is David Phillips, who is
forty-three (43) years old. Mr. Phillips, [a]ppellant
and [a]ppellant’s co-defendant, Stephen Masten
(“Masten”) have known each other from affiliations
with the Aryan Brotherhood. Prior to the incident in
question, Masten was in prison and heard a rumor
that Mr. Phillips, the victim, had been hitting on his
girlfriend. When Masten was released from prison[,]
he immediately began threatening Mr. Phillips telling
1
18 Pa.C.S.A. §§ 2702, 3502, and 903, respectively.
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him that he was “going to get touched,” meaning
something would happen to him.
Two weeks after Masten was released from
prison, on May 6, 2012, at approximately 10 p.m.
both [a]ppellant and Masten broke into Mr. Phillips’s
home by kicking in the front door. They proceeded
up to Mr. Phillips’s bedroom. Mr. Phillips had been
sleeping in his bed when [a]ppellant and Masten
turned on the lights and both began striking
Mr. Phillips with a shovel in his face, stating, “We are
going to take all of your shit and CD’s [sic].” Both
[a]ppellant and Masten repeatedly told Mr. Phillips,
“We are going to kill you, mother f[**]ker.”
Mr. Phillips fell to the ground and was repeatedly hit
in the head with a shovel.
Next, Masten straddled Mr. Phillips and tried to
choke him and smother him with a pillow.
Mr. Phillips began begging for his life when Masten
told him, “No, you are dead.” Masten struggled to
hold Mr. Phillips down so [a]ppellant began kicking
Mr. Philips with his boots and punching him
repeatedly. Masten then began to gouge out
Mr. Phillips’s eyes, while [a]ppellant held him down
by the waist and legs. Masten said, “His eyes
popped out, I killed the bastard.” Both Masten and
[a]ppellant began to laugh and [a]ppellant said,
“Good, kill him good.”
Mr. Phillips lost consciousness for a while but
eventually was able to drag himself down the stairs
and throw himself out a window for help. Mr. Phillips
was rushed to the hospital and transferred to
Wills Eye for surgery. Mr. Phillips suffered
catastrophic injuries. Mr. Phillips received fifty-two
staples, stitches to his head, and both eyes were
pulled out of his sockets, and the sockets were
broken. Mr. Phillips also suffered lacerations and
bruising all over his face. He is now permanently
blind.
After the incident, [a]ppellant admitted to
Wilbur Lauer, a friend[,] that he went to Mr. Phillips’s
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residence with Masten. Then, [a]ppellant and
Masten went to the home of Michael Cook, where
Masten asked Cook for a special Christian Aryan
patch. Appellant was then given this patch and a
ceremony was preformed that is called, getting
patched in. Later, [a]ppellant and Masten described
to Cook how they had beaten up some guy and went
into detail including how they kicked the door in, and
how Mr. Phillips had been sleeping. Appellant and
Masten also told Cook about how they kicked
Mr. Phillips and joked that it was a boot party and
that they should have worn painter suits so they
don’t leave any evidence. Masten told Cook, “I
squeezed his f[**]king eyes out and popped them
like grapes.” Cook noted that both defendants
looked like they had recently been involved in a
fight.
[Appellant and Masten] also later admitted that
they “Got into it with Dave (Mr. Phillips)” to
Joseph Hammer, [a]ppellant’s cousin. Appellant
stated that he was not worried because Masten
would take the rap for him.
Trial court opinion, 4/20/16 at 2-4 (citations to notes of testimony omitted).
Appellant was subsequently charged with attempted murder and a
litany of other crimes in connection with this incident. On April 6, 2015,
appellant entered an open guilty plea to one count each of aggravated
assault, burglary, and criminal conspiracy. The remaining charges were
nolle prossed by the Commonwealth. Following the completion of a
pre-sentence investigation (“PSI”) report and mental health evaluation, the
trial court sentenced appellant on July 10, 2015. Specifically, appellant was
sentenced to 7 to 14 years’ imprisonment, followed by 6 years’ probation for
aggravated assault; 7 to 14 years’ imprisonment, followed by 6 years’
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probation for criminal conspiracy; and 6 to 12 years’ imprisonment, followed
by 8 years’ probation for burglary. (See notes of testimony, 7/10/15 at
40-41.)2
On July 16, 2015, appellant filed post-sentence motions for,
inter alia, reconsideration of his sentence. On November 5, 2015, the trial
court amended its July 10, 2015 sentencing order to note that all the
charges were to run consecutively. On November 16, 2015, appellant’s
post-sentence motions were denied by operation of law, pursuant to
Pa.R.Crim.P. 720(B)(3). This timely appeal followed on November 24, 2015.
On January 22, 2016, the trial court entered an order directing appellant to
file a Pa.R.A.P. 1925(b) statement by February 22, 2016. Appellant
complied with the trial court’s order and filed a timely Rule 1925(b)
statement on February 22, 2016. Thereafter, on April 20, 2016, the PCRA
court filed a comprehensive, ten-page Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Did the [trial] court impose a manifestly excessive
and unreasonable sentence in violation of the
Sentencing Code when it sentenced [a]ppellant to an
aggregate sentence of 20 to 40 years in state prison
followed by 20 years of probation, because it
violated the requirements of section 42 Pa.C.S.[A.]
§ 9721, it failed to provide a contemporaneous
statement for deviating from the guidelines on the
record and failed to consider [a]ppellant’s needs and
whether the sentence was the least stringent to
protect the community[?]
2
Appellant was represented at sentencing by Jeffrey Kilroy, Esq.
(“Attorney Kilroy”).
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Appellant’s brief at 3 (footnote omitted).3
Our standard of review in assessing whether a trial court has erred in
fashioning a sentence 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,
[a]ppellant 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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015) (citation omitted).
Where an appellant challenges the discretionary aspects of his
sentence, as is the case here, the right to appellate review is not absolute.
See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).
Rather, an appellant challenging the discretionary aspects of his sentence
must invoke this court’s jurisdiction by satisfying the following four-part
test:
(1) whether the appeal is timely; (2) whether
appellant preserved his issue; (3) whether
appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
3
The record reflects that appellant has abandoned the remaining claims
raised in his Rule 1925(b) statement.
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substantial question that the sentence is appropriate
under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Here, the record reveals that appellant filed a timely notice of appeal
and challenged the discretionary aspects of his sentence in his July 16, 2015
post-sentence motion. Appellant also included a statement in his brief that
comports with the requirements of Pa.R.A.P. 2119(f). (See appellant’s brief
at 11-14.) Accordingly, we must determine whether appellant has raised a
substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “A substantial question exists only when 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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).
In his Rule 2119(f) statement, appellant argues that his sentence is
manifestly excessive, clearly unreasonable, and is the functional equivalent
of a life sentence. (Appellant’s brief at 11, 14.) Appellant contends that the
trial court failed to state sufficient reasons on the record for deviating from
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the sentencing guidelines with respect to the burglary and criminal
conspiracy charges and “failed to specifically delineate what factors it
considered aggravators, thus justifying its sentence[.]” (Id. at 12, 17-20.)
Appellant further argues that the trial court failed to consider multiple
sentencing factors set forth in Section 9721(b), including “an individualized
consideration as to appellant’s rehabilitative needs[,]” his character, and his
difficult upbringing. (Id. at 13, 20-25.) Rather, appellant avers the trial
court elected to “focus[] solely on the facts relating to the instant case and
his criminal record.” (Id. at 13.)4
We have recognized that “a claim that the sentencing court misapplied
the Sentencing Guidelines presents a substantial question.”
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super. 2007) (citation
4
Appellant also argues, albeit parenthetically, that the trial court abused its
discretion in imposing his sentences consecutively. (Appellant’s brief at 11,
16.) The “[l]ong standing precedent of this [c]ourt recognizes that
42 Pa.C.S.A. [§] 9721 affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.” Commonwealth v.
Marts, 889 A.2d 608, 612 (Pa.Super. 2005). Generally, the imposition of
consecutive sentences does not raise a substantial question. See
Commonwealth v. Pass, 914 A.2d 442, 446 (Pa.Super. 2006). Such a
claim may raise a substantial question “in only the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014) (citation omitted). This case simply does
not present “extreme circumstances” and appellant’s sentence is not unduly
harsh considering the criminal conduct that occurred in the case, the nature
of the crime, and the length of imprisonment. Accordingly, we conclude that
the trial court’s decision to impose consecutive, rather than concurrent,
sentences does not present a substantial question for our review.
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omitted). Appellant’s assertion that the sentencing court failed to consider
his individualized circumstances in fashioning his sentence also raises a
substantial question. See Commonwealth v. Ahmad, 961 A.2d 884, 887
(Pa.Super. 2008). Additionally, a claim that the trial court failed to consider
an appellant’s rehabilitative needs raises a substantial question. See
Dodge, 77 A.3d at 1273 (finding “appellant’s claim that the sentencing court
disregarded rehabilitation and the nature and circumstances of the offense in
handing down its sentence presents a substantial question for our review.”).
Accordingly, we proceed to consider the merits of appellant’s discretionary
sentencing claims.
Herein, the record reveals that the trial court considered and weighed
numerous factors in fashioning appellant’s sentence, including the
sentencing guidelines, the protection of the public, appellant’s lack of
remorse, and the “unmitigated cruelty and indifference to the value of
human life demonstrated by [a]ppellant.” (Notes of testimony, 7/10/15
at 4; see also trial court opinion, 4/20/16 at 5-8.) The record further
reflects that the trial court took into consideration the gravity of the offense
in relation to its impact on the victim, who testified briefly at the July 10,
2015 hearing and authored an impact letter that was read into the record by
Assistant District Attorney Alisa Shver. (Notes of testimony, 7/10/15 at
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27-29, 38.)5 The trial court also heard extensive testimony from
Attorney Kilroy on appellant’s background, minimal education, and
substance abuse problems. (Id. at 4-11.) Appellant’s mother,
Pauline Casiano6, also testified as to appellant’s family life and upbringing,
stating that “[a]fter [appellant’s] father died, he got really caught up in
lot [sic] of things[,]” and that she had “never seen a mean side of him like
that.” (Id. at 21.)
Additionally, the trial court was aware of the fact that appellant has
10 arrests and 8 convictions as an adult, but concluded that appellant’s prior
terms of imprisonment had done little to deter him from criminal behavior.
(Trial court opinion, 4/20/16 at 7-8; see also notes of testimony, 7/10/15
5
The trial court summarized the contents of the victim impact letter as
follows:
In the letter Mr. Phillips wrote how he has only been
able to see darkness since the incident. Mr. Phillips
remains frightened because [a]ppellant yelled in his
ear, “Don’t you forget who did this," as [a]ppellant
and Masten held him down, assaulted him, and
ultimately gouged his eyes out, thinking they left
him for dead. Mr. Phillips fears that if [a]ppellant
were ever let out of prison that he would be free to
come after him and finish the job he set out to do
that night when he blinded him.
Trial court opinion, 4/20/16 at 4-5 (citations to notes of testimony omitted).
6
Appellant’s mother’s name is incorrectly spelled Pauline Cassiano in the
July 10, 2015 hearing testimony. (See notes of testimony, 7/10/15 at 21-
23.)
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at 39.) At the July 10, 2015 hearing, the trial court stated the following
rationale in support of appellant’s 20 to 40-year term of imprisonment:
Well, I have heard everything. I have read
everything. And this is one of the more heinous
things that I have seen as a criminal judge the entire
time I’ve been on the bench. The cruelty that’s been
displayed here, is something else.
Your attorney started off by telling me that
you’ve been sentenced several times and that you’ve
never really got into a treatment plan, but it
reminded me of something else. A quote from
Shakespeare on mercy. Up until now the [trial
c]ourt has shown you nothing by mer[cy]. Well, that
is about to change. I know that you may have been
a follower. But you got to remember that sometimes
the person you would take the bullet for is the
person standing behind the trigger and that’s the
case here.
What happened to [the victim], and in the way
it was done, was more callous than anything I’ve
ever seen, but for the grace of God he is alive. And
there’s [sic] to no fault of yours that that has
occurred. At the time that this had occurred, it was
a fight over a girl. And I would agree to an extent
that the white supremacy had nothing to do with it.
It’s a lifestyle choice that I do not agree with. But it
was a fight over a girl and you went to beat a man
up. You go into his house, and as you described it
later, you had a boot party. You sat on his chest
while someone dug their thumbs into this man’s eyes
and pulled them out and squished them. You told a
friend that you got him and that you killed him real
good [sic] and you were having a boot party.
Now, everyone is telling me that you’re
remorseful, but true remorse is not a fear of
consequence. True remorse is a regret over the
cause of actions that lead to this and that’s not what
I’m seeing.
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....
I can tell you right now that had this gone to
trial and you had been found guilty of these charges,
and had you been in front of me, I can guarantee
that you would never have been eligible for parole in
your nature [sic] lifetime. As harsh as you may
think this sentence is, it is not.
Notes of testimony, 7/10/15 at 39-41.
Additionally, both appellant and Attorney Kilroy testified at the
sentencing hearing with regard to the number of rehabilitative and recovery
programs appellant has enrolled in while incarcerated and his desire to
change his life and undergo treatment. (Id. at 12-19, 35-37.) Although the
record reflects that the trial court did not specifically state at the sentencing
hearing that it considered appellant’s rehabilitative needs, the trial court was
in possession of both a lengthy PSI report prepared by appellant’s counsel
and a court-appointed mental health evaluation and indicated that it
considered both of them. (Notes of testimony, 7/10/15 at 3; see also
“Motion to Reconsider Sentence,” 7/16/15, Appendix A; certified record at
13.) Where the trial court has the benefit of a PSI report, as is the case
here, “we shall . . . presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014), appeal denied, 95 A.3d
275 (Pa. 2014) (citation omitted).
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Accordingly, for all the foregoing reasons, we find that appellant’s
challenges to the discretionary aspects of his sentence must fail. Therefore,
we affirm the November 5, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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Com. v. Casiano, F.
Combined Opinion