Com. v. McClintic, J.

J-A27032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

JOHN MCCLINTIC

Appellant No. 2567 EDA 2009

Appeal from the Judgment of Sentence August 12, 2009
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): 10207058511
CP-51-CR-0801571-2002
CP-51-CR-0801581-2002

BEFORE: PANELLA, LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MAY 18, 2017

Appellant, John McClintic, appeals from his judgment of sentence of

forty-five to ninety years’ imprisonment arising from two separate home

invasions against the same elderly victim within an eight-day span.

Appellant argues, inter alia, that the trial court (1) erred in sentencing him

as a “third-strike” offender because he had not previously been sentenced as

a “second-strike” offender under 42 Pa.C.S. § 9714, (2) erred in construing

his silence at sentencing as lack of remorse, (3) abused its discretion in

sentencing him outside of the Sentencing Guidelines, and (4) abused its

discretion in imposing consecutive sentences. We affirm.

*
Former Justice specially assigned to the Superior Court.
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This case has a lengthy and tortuous history. At approximately 2:00

a.m. on June 27, 2002, Appellant broke into a house in Philadelphia where

Sarah K., an eighty-five-year-old woman who lived alone, had resided for

approximately sixty years. When Appellant entered Ms. K.’s bedroom, she

awoke and immediately recognized Appellant, who lived two doors away.

Appellant stood over six feet, weighed 250 pounds, and was bare-chested

and covered with tattoos. Ms. K. was five feet, two inches tall.

Appellant sat down next to Ms. K. on her bed and said: “Give me your

money. I won’t hurt you but I have a gun.” N.T., 1/22/03, at 68. Ms. K.

was “shaking like a leaf” and feared she would suffer a heart attack, but she

managed to show him a wallet on her night table that contained $125.00.

Appellant demanded more money. Id. at 69. She told him the only thing

she had left was a little purse with a few dollars in change for bingo. He

took that as well. He then grabbed her right breast and pinched it “with all

his strength”—so hard that Ms. K could not scream because she lost her

voice. Id. at 71.

After Appellant left, Ms. K. discovered that a board securing one of her

windows had been removed, and that her telephone line had been cut. She

had the telephone company repair the line but did not report the crime.

Eight days later, on July 5, 2002, Appellant again broke into Ms. K.’s

home in the early morning hours and entered her bedroom. He repeated

that he had a gun and forced Ms. K. to hand over the only money she had

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left in the house, a bag containing some dimes and two bracelets. He then

“cracked” her right thigh “real[ly] hard” and ordered her to get back into

bed. Id. at 84. After Appellant left, Ms. K. tried to call the police, but the

telephone line had been cut again. In addition, a door and two windows had

been forced open. Ms. K. eventually contacted the police, who arrested

Appellant. Ms. K. became obsessively concerned with her safety, was no

longer able to live independently and had to move into an assisted living

arrangement facility.

In January 2003, a jury found Appellant guilty of committing robbery

and burglary on both June 27, 2002 and July 5, 2002. At the time, he had

an extensive criminal record that included two prior “strikes” for purposes of

sentencing as a recidivist offender: a 1987 sentence for aggravated assault

and a 1997 sentence for robbery.

At sentencing on March 25, 2003, defense counsel agreed that

Appellant was subject to a third strike mandatory minimum sentence but

requested that he receive only one sentence of twenty-five to fifty years’

imprisonment. The trial court imposed four separate third strike sentences—

one each for the June 27, 2002 robbery and burglary and one each for the

July 5, 2002 robbery and burglary. This Court affirmed the judgment of

sentence, but our Supreme Court reversed. See Commonwealth v.

McClintic, 909 A.2d 1241 (Pa. 2006) (“McClintic I”). The Supreme Court

found that “Appellant had two prior convictions for crimes of violence and

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thus qualified as a ‘three strikes offender’” but determined that “the

legislature intended to apply sentencing enhancements for all crimes arising

from a criminal transaction, rather than for each individual crime within the

transaction.” Id. at 1243, 1251. The Court “remanded to the trial court for

re-sentencing consistent with this opinion.” Id. at 1252.

On January 23, 2007, Appellant appeared for resentencing. The trial

court imposed one third strike sentence for the June 27, 2002 episode and a

second third strike sentence for the July 5, 2002 episode. Appellant filed

post-sentence motions, and the court agreed to vacate the judgments of

sentence and schedule further proceedings.

In April 2007, the trial court held a third sentencing hearing. Appellant

claimed, for the first time, that he was not a third strike offender because he

had never been sentenced as a second strike offender. The trial court

rejected this argument and re-imposed the January 23, 2007 sentence.

“[A]ny deviation from the [Sentencing G]uidelines,” the court explained, was

attributable to the “gravity of the offense,” including “the fact that [Ms. K.’]s

a senior citizen, a very tiny lady compared to [Appellant’s] very tall height

and weight . . .” N.T., Sentencing Hr’g, 1/23/07, at 38.

Appellant appealed, claiming that he was not subject to a third strike

penalty. This Court held that Appellant waived this objection, and that his

status as a third strike offender was the law of the case. Commonwealth

v. McClintic, No. 1249 EDA 2007 (unpublished memorandum) (Pa. Super.

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Sept. 19, 2008) (“McClintic II”). We concluded, however, that Appellant

could receive no more than a single third strike sentence for both home

invasions and remanded for resentencing on that basis.

On August 12, 2009, Appellant appeared before the trial court for his

fourth sentencing hearing. Appellant answered several factual questions

relating to his age, his prison employment and the date of a particular prison

disciplinary infraction. N.T., Sentencing Hr’g, 8/12/09, at 13, 14, 26, 27,

32. The following exchange also took place:

The Court: Do you have anything you want to say,
Mr. McClintic?

[Appellant]: No, ma’am.

The Court: Okay. If you change your mind, you
may address me. Okay?

[Appellant]: Yes, ma’am.

Id. at 14.

The Commonwealth incorporated by reference all arguments, evidence

and exhibits presented during Appellant’s prior sentencing hearings in 2003

and 2007. Id. at 14-15. Further, the Commonwealth introduced evidence

that Appellant had committed three disciplinary infractions in 2007 and

2008: one for loaning or borrowing property in violation of prison rules, a

second for using obscene language and refusing to obey staff orders, and a

third for self-mutilation and possession of contraband and money. Id. at

15-17.

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The court observed that it had reviewed the relevant Sentencing

Guidelines during the 2003 and 2007 sentencing hearings, id. at 17, but the

Commonwealth repeated them once again. Id. at 17-18. The court

responded: “I understand. Because every sentencing has to start with the

guideline consideration and I just want to be sure we are in agreement.” Id.

at 18.

The trial court acknowledged that Appellant had taken one step to

rehabilitate himself by studying the Bible and involving himself in the Holy

Name Society. Id. at 35-36. The court found, however, that other factors

demonstrated Appellant’s inability to rehabilitate himself. To begin with, the

court noted that he traumatized the elderly victim during the two home

invasions: “[I] remember the pinching of the [victim’s] breasts so hard that

it was black, green, purple and blue for weeks and weeks afterwards.” Id.

at 35. Moreover, despite several terms in state prison for his prior offenses,

he had

three [infractions since his 2007 sentencing hearing] that
resulted in being disciplined by the [p]rison. And what
that shows me . . . is that I have great concerns that you
cannot be supervised in society safely and securely. You
don’t follow the rules . . .

Id. at 36. The court added: “I have not heard anything—I have heard no

remorse about what happened.” Id. at 37-38.

The trial court imposed (1) a single third strike sentence of twenty-five

to fifty years for the June 27, 2002 robbery, (2) a concurrent ten to twenty

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year sentence for the June 27, 2002 burglary, (3) a consecutive ten to

twenty year sentence for the July 5, 2002 robbery, (4) a consecutive ten to

twenty year sentence for the July 5, 2002 burglary, and (5) no further

penalty for the remaining offenses for an aggregate of forty-five to ninety

years’ imprisonment. Id. at 38-39. The court explained that it did not

impose this sentence “out of vengeance . . . [or] anger. I only do it to

protect the community. I feel [Appellant] has not shown he is rehabilitated.

I have my concerns. There is no remorse here and [Appellant’s] history of

violence warrants this sentence.” Id. at 40.

Appellant filed post-sentence motions in which he argued, inter alia,

that he had the right “to remain silent at sentencing without suffering an

adverse inference of non-remorse.” Post-Sentence Mot., 8/14/09, at 3. On

August 18, 2009, the trial court denied Appellant’s post-sentence motions.

On August 31, 2009, Appellant timely appealed to this Court.1 The trial

court issued a Pa.R.A.P. 1925(a) opinion without directing Appellant to file a

Pa.R.A.P. 1925(b) statement. The court did not address Appellant’s lack of

remorse issue in its opinion.

1
This appeal has been protracted due to multiple delays from 2009 to 2013
in preparing a complete and accurate record for appeal. On April 1, 2013,
the Appeals Unit of the Clerk of Quarter Sessions received the record.
Inexplicably, the Appeals Unit did not transmit the record to this Court until
September 9, 2015. The parties did not complete briefing until the end of
June 2016, and the case was argued on September 28, 2016.

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Appellant raises four issues in this appeal, which we re-order for

purposes of disposition:

1. Was not the “Strike Three” penalty illegally imposed
because [A]ppellant never previously suffered a “Strike
Two” penalty[?]

2. Was it not sentencing error for the trial court to consider
non-remorse as a sentencing factor based upon
[A]ppellant’s invocation of his constitutional right to remain
silent at sentencing?

3. Was not the trial court’s non-recognition that it
sentenced [A]ppellant “outside” of the Sentencing
Guidelines sentencing error?

4. Was not the sentence imposed excessive?

Appellant’s Brief at 3.

Appellant first argues that he cannot receive a third strike sentence

because he never received a second strike sentence for either his 1987

aggravated assault conviction or his 1996 robbery conviction. This challenge

to the legality of his sentence raises a question of law over which we

exercise plenary review. Commonwealth v. Williams, 868 A.2d 529, 532

(Pa. Super. 2005). We conclude that the law of the case doctrine precludes

Appellant from raising this issue, because this Court previously ruled on this

issue in its memorandum in 1249 EDA 2007.

The law of the case doctrine is

a family of rules which embody the concept that a court
involved in the later phases of a litigated matter should not
reopen questions decided by another judge of that same
court or by a higher court in the earlier phases of the
matter. Among the related but distinct rules which make

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up the law of the case doctrine are that: (1) upon remand
for further proceedings, a trial court may not alter the
resolution of a legal question previously decided by the
appellate court in the matter; (2) upon a second appeal,
an appellate court may not alter the resolution of a legal
question previously decided by the same appellate court;
and (3) upon transfer of a matter between trial judges of
coordinate jurisdiction, the transferee trial court may not
alter the resolution of a legal question previously decided
by the transferor trial court.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). This general

prohibition, however, is not absolute. Departure from the rule is permissible

in “exceptional circumstances such as where there has been a change in the

controlling law, a substantial change in the facts or evidence giving rise to

the dispute in the matter, or where the prior holding was clearly erroneous

and would create a manifest injustice if followed.” Id. at 1332.

Following his resentencing hearings in 2007, Appellant appealed to this

Court and raised the same issue that he now attempts to raise in this

appeal: “Was not the ‘strike three’ penalty improperly imposed because

[A]ppellant never previously suffered a ‘strike two’ penalty?” McClintic II,

at 3. In response, this Court determined that the law of the case doctrine

barred Appellant from re-litigating his status as a third-strike offender,

because the Supreme Court had previously confirmed in 2006 that Appellant

was a third-strike offender. Id. at 6-8 (citing McClintic I, 909 A.2d at

1250-52). Moreover, Appellant’s challenge to his third-strike status did not

fall within any exception to the law of the case doctrine “such as an

intervening change in the law, a substantial change in the facts, or a prior

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ruling that was clearly erroneous that would create a manifest injustice if

followed.” Id. at 9. Appellant’s present appeal is another attempt to re-

litigate whether his third strike sentence is improper due to the lack of a

second strike sentence, the same question that our Supreme Court

previously decided against Appellant in McClintic I and that this Court

previously refused to reconsider in McClintic II on the basis of McClintic I.

Like the McClintic II court, we have no authority to overrule our Supreme

Court’s determination of this question in McClintic I.2

Appellant next argues that the trial court abused its discretion by

construing Appellant’s invocation of his constitutional right to remain silent

during sentencing as demonstrating his lack of remorse. In view of our

reasoning in Commonwealth v. Bowen, 975 A.2d 1120 (Pa. Super. 2009),

no relief is due.

2
Contrary to Appellant’s suggestion, our Supreme Court’s decision in
Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005), does not constitute
a change in Supreme Court jurisprudence that authorizes us to reach a
different decision than we did in McClintic II. “It is beyond the power of a
Superior Court panel to overrule a prior decision of the Superior Court
except in circumstances where intervening authority by our Supreme Court
calls into question a previous decision of this Court.” Czimmer v. Janssen
Pharmaceuticals, Inc., 122 A.3d 1043, 1063 n.19 (Pa. Super. 2015)
(citation omitted). Implicit in “intervening” is that this panel cannot overrule
a decision from a prior three-judge panel of this Court based on a Supreme
Court decision that pre-dates the previous panel’s decision. To be
intervening, the Supreme Court’s decision must issue after the prior panel’s
decision. Shiffler does not meet this test because it issued three years
before our decision at 1479 EDA 2007.

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Preliminarily, we observe that challenges to the discretionary aspects

of sentencing do not entitle an appellant to appellate review as of right.

Before reaching the merits of a discretionary sentencing issue:

[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. § 781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

Here, Appellant timely filed a notice of appeal, argued in post-sentence

motions that the court abused its discretion by equating his silence with lack

of remorse and included a Rule 2119(f) statement in his brief. We evaluate

what constitutes a substantial question 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 were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Griffin, 65

A.3d at 935 (citation and internal quotation marks omitted).

Here, Appellant contends that the court violated his constitutional

rights by holding his invocation of his right to silence against him. This claim

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raises a substantial question for our review, so we will address its merits.

Bowen, 975 A.2d at 1122 (defendant’s contention that his sentence “was

based on an unconstitutional factor . . . raises a substantial question for our

review”).

“[I]t is undoubtedly appropriate for a trial court to consider a

defendant’s lack of remorse as a factor at sentencing, provided that it is

specifically considered in relation to protection of the public, the gravity of

the offense, and the defendant’s rehabilitative needs.” Id. at 1125 (citation

omitted). On the other hand, the Fifth Amendment’s privilege against self-

incrimination prohibits the court from construing the defendant’s silence

during sentencing as “the sole basis for finding that [the] defendant lacked

remorse.” Id. at 1127.

In Bowen, the defendant chose not to testify during trial. A jury

acquitted him of rape and sexual assault charges but convicted him of

simple assault and terroristic threats. Appellant continued to remain silent

at sentencing. The trial court imposed a standard range sentence for simple

assault and a consecutive, aggravated range sentence of imprisonment for

terroristic threats. As justification for the aggravated range sentence, the

court noted Appellant’s poor employment history, long history of recidivism,

the victim’s emotional trauma, and Appellant’s failure to show any remorse,

even after the jury’s decision.

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This Court disapproved of the trial court’s “consider[ation of the]

defendant’s silence at sentencing as indicative of his failure to take

responsibility for the crimes of which he was convicted.” Id. at 1121. We

discussed State v. Burgess, 943 A.2d 727 (N.H. 2008), as follows:

[T]he New Hampshire [Supreme] Court undertook an
extensive analysis [in Burgess] of which federal and state
jurisdictions permit a sentencing court to consider when “a
defendant’s silence after trial may be considered as a
failure to accept responsibility or failure to express
remorse, and thus indicate that an individual has a
reduced potential for rehabilitation,” and which
jurisdictions “hold that a sentencing court may not
consider a defendant’s silence at sentencing as indicating a
lack of remorse without violating his privilege against self-
incrimination.” Id. [] 943 A.2d at 734–35. In agreeing
with the latter jurisdictions, the Burgess Court referenced
“the Hobson’s choice,” that is, “the defendant must admit
wrongdoing and jeopardize his post-trial remedies, testify
falsely and risk a perjury conviction, or remain silent and
risk obtaining a greater sentence.” Id. [] 943 A.2d at
735–36 (quoting State v. Shreves, [] 60 P.3d 991, 996–
97 ([Mont.] 2002), and citing South Dakota v. Neville,
459 U.S. 553, 563 [] (1983)).

Bowen, 975 A.2d at 1125-26. Because Pennsylvania’s sentencing scheme

subjected defendants to the same hazards in most cases,3 we held that

“silence at sentencing may not form the basis of finding that a defendant

3
We agreed with Burgess that “‘the Hobson’s choice’ is not automatically
present at sentencing, because some factual circumstances may indicate
that expressing remorse would not be a newly incriminatory statement.” Id.
at 1126 n. 6. One such circumstance could occur when “the defendant
admits to committing the acts[] but claims he lacked the requisite mental
state to convict him of the crime.” Id. (citing Burgess, 943 A.2d at 738–
39).

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failed to take responsibility for his crimes [and] may not be the sole basis for

finding that a defendant lacked remorse.” Id. at 1127.

Nevertheless, the Bowen court determined that a remand for

resentencing was not necessary, because “several other [legitimate] factors

[warranted] an aggravated-range sentence, including [the a]ppellant's lack

of a significant job history and the great emotional trauma his crimes caused

the victim, as well as his recidivist history and violations of probation.” Id.

(quotations omitted).

This case is substantially similar to Bowen. Aside from answering

several basic questions about his age, prison employment and date of a

particular disciplinary infraction in prison, Appellant remained silent during

sentencing. The trial court equated Appellant’s silence with lack of remorse

in violation of his Fifth Amendment right against self-incrimination. This,

however, was not the only factor that the court took into consideration: it

also relied on multiple appropriate sentencing factors, including the serious

impact of Appellant’s crimes on the helpless victim, his dim prospects for

rehabilitation in view of his prior criminal history, and his disciplinary record

in prison. Thus, as in Bowen, we hold that the court’s error in regarding

Appellant’s silence as indicating lack of remorse does not entitle Appellant to

resentencing.

Appellant further argues that Bowen should be overruled because it

conflicts with Commonwealth v. Bethea, 379 A.2d 102, 104 (Pa. 1977), in

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which our Supreme Court held that the trial court cannot penalize the

defendant at sentencing for exercising his constitutional rights. In Bethea,

the trial court imposed a harsher sentence because the defendant exercised

his right to go to trial instead of pleading guilty. Although the trial court also

based its sentence on other permissible factors, such as the violent nature of

the crime, the Supreme Court held that “it is sufficient to render a sentence

invalid if it reasonably appears from the record that the trial court relied in

whole or in part upon [an impermissible] factor.”4 Id. at 107.

Even if Appellant’s objection to Bowen is correct, we cannot grant him

relief. As we observed above in footnote 2, a three-judge panel of this Court

cannot overrule a prior three-judge panel’s decision on the basis of a

Supreme Court decision that pre-dates the prior panel’s decision. Because

Bethea pre-dates this Court’s decision in Bowen, we cannot overrule

Bowen on the basis of Bethea. Only an en banc panel of the Superior

Court, or the Supreme Court itself, could overrule Bowen on this basis.5

4
Subsequently, the Supreme Court held in Commonwealth v. Smith, 673
A.2d 893 (Pa. 1996), that “our decision in Bethea is limited to the narrow
category of cases in which a trial court impermissibly penalizes a defendant
for exercising constitutional rights.” Smith, 673 A.2d at 896. Bethea does
apply when the trial court considers an impermissible, but non-
constitutional, sentencing factor. Id. In that circumstance, it is possible for
the impermissible factor to be offset by other permissible factors. Id. at
896-97.
5
We express no opinion on whether Appellant’s analysis of Bethea is legally
sound.

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In his third argument, Appellant contends that the trial court abused

its discretion because it failed to recognize that it was sentencing Appellant

outside of the Sentencing Guidelines for non-mandatory offenses. We

disagree.

The trial court was familiar with this case, having presided over

Appellant’s trial and two previous sentencing hearings in 2003 and 2007.

Moreover, the court stated during the 2007 hearing that any “deviation from

the guidelines” was attributable to the gravity of the offense, including the

disparity in height and weight between Appellant and the elderly victim.

N.T., Sentencing Hr’g, 1/23/07, at 38. During the 2009 hearing, the

Commonwealth incorporated all prior arguments, evidence and exhibits from

the 2003 and 2007 sentencing hearings into the record. N.T., Sentencing

Hr’g, at 14-15. Although the court stated that it had reviewed the guidelines

during the 2003 and 2007 sentencing hearings, the Commonwealth repeated

them again in an abundance of caution. Id. at 17-18. Thus, the court was

aware in 2009, as it had been aware in 2007, that it was sentencing

Appellant outside the Sentencing Guidelines.

Appellant seizes upon the fact that the court referred to “following the

guidelines” and imposing a “guidelines sentence” in its Pa.R.A.P. 1925(a)

opinion. Based on the combination of factors summarized above, we agree

with the Commonwealth that this “was mere shorthand for a sentence that

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properly took the guidelines into account, as the [court] explained she . . .

had an obligation to do.” Commonwealth’s Brief at 16.

Finally, Appellant argues that his sentence is excessive because the

court imposed consecutive sentences in addition to the mandatory “third

strike” penalty of twenty-five to fifty years’ imprisonment. We disagree.

A court’s decision to impose consecutive rather than concurrent

sentences generally does not raise a substantial question for appellate

review. See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598

(Pa. Super. 2010). Assuming arguendo that Appellant presents a substantial

question, he still is not entitled to relief.

A sentence cannot be disturbed absent a manifest abuse of discretion.

See Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014),

appeal denied, 117 A.3d 297 (Pa. 2015) (citation omitted). This may be

found only if “the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (citation omitted).

We afford great weight to the sentencing court’s views, because “it is in

[the] best position to assess the defendant’s character, displays of remorse,

defiance or indifference, and the overall effect and nature of [his] crime[s].”

Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa. Super. 2009)

(citation omitted).

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Here, the trial court was exceptionally familiar with Appellant, having

presided over his jury trial, obtained a presentence report, tracked his

subsequent conduct over a period of years and received extensive evidence

during multiple sentencing hearings. Appellant’s offenses were grievous: he

repeatedly targeted an elderly woman, invaded her bedroom at night, forced

her to hand over her meager belongings, pinched her breast as hard as he

could and “cracked” her thigh. The impact on the victim was devastating,

for she developed mental health problems that required her to leave the

home where she had lived for six decades. In addition, Appellant was a poor

candidate for rehabilitation in view of his extensive criminal record and

history of disciplinary infractions in prison. We hold that the trial court acted

within its discretion by imposing an aggregate sentence of forty-five to

ninety years’ imprisonment.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2017

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