Com. v. Malloy, D. ( 2017 )

J-S72043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DANIR MALLOY :
: No. 3569 EDA 2016
Appellant
Appeal from the Judgment of Sentence October 20, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012074-2015
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 14, 2017
Appellant Danir Malloy appeals from the Judgment of Sentence entered
in the Court of Common Pleas of Philadelphia County on October 20, 2016, at
which time he was sentenced to an aggregate term of eleven (11) years to
twenty-two (22) years in prison. We affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
PROCEDURAL BACKGROUND
On August 11, 2016, following trial, a jury found Appellant
guilty of robbery (18 Pa. C.S. § 3701(a)(1)(ii)), theft by unlawful
taking (18 Pa. C.S. § 3921(a)), possessing an instrument of a
crime (PIC) (18 Pa. C.S. § 907(a)), and terroristic threats (18
Pa. C.S. § 2706(a)(1)). On October 14, 2016, this [c]ourt
sentenced Appellant to an aggregate term of eleven (11) to
twenty-two (22) years' incarceration, which included a
mandatory minimum of ten (10) years' incarceration under 42
Pa. C.S. § 9714 for his robbery conviction.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72043-17
On October 19, 2016, Appellant filed a motion for
reconsideration of sentence, claiming this [c]ourt had
erroneously applied 42 Pa. C.S. § 9714. On October 20, 2016,
following a hearing on Appellant's motion, this [c]ourt again
sentenced Appellant to 11 to 22 years' incarceration. Although
this [c]ourt did not sentence Appellant pursuant to § 9714, this
[c]ourt imposed consecutive sentences of (10) to twenty (20)
years' incarceration on the robbery conviction and one (1) to two
(2) years' incarceration on the PIC conviction. This [c]ourt
imposed no sentence on the terroristic threats conviction, and
the theft charge, for purposes of sentencing, merged with the
robbery charge.
On November 9, 2016, Appellant filed another motion for
reconsideration of sentence, which this [c]ourt denied on
November 14, 2016. On November 18, 2016, Appellant filed a
notice of appeal to the Superior Court, and on February 14, 2016,
Appellant filed a "Statement of Errors Complained of on Appeal"
pursuant to Pa. R.A.P. 1925(b).
FACTUAL BACKGROUND
At trial, the Commonwealth presented the testimony of
Louis Lanni ("Mr. Lanni"), Philadelphia Police Officer George
Dilworth ("Officer Dilworth"), Philadelphia Police Officer Walter
Henik ("Officer Henik"), and Tiara Bethea ("Ms. Bethea").
Mr. Lanni testified that on November 11, 2015, around
1:00 a.m., he left a bar and was walking home along the 1100
block of Spruce Street in the city and county of Philadelphia,
Pennsylvania, when he felt a "violent shove on [his] rear and
right side causing [him] to stumble forward."1 Mr. Lanni turned
around and encountered Appellant "standing directly behind
[him] holding a silver automatic handgun ... point[ed] at [Mr.
Lanni's] chest." Appellant demanded money and threatened:
"Give it up or you're going to get hurt." Mr. Lanni, however,
grabbed Appellant's handgun and the two men "struggled … for
control of the gun." (N.T., 8/10/16, pgs. 130-132, 145).
At some point Mr. Lanni lost his footing and fell to the
sidewalk, landing hard on his right hip where he recently
underwent a hip replacement surgery. Appellant landed on top
of Mr. Lanni but he quickly rose to his feet. With Appellant now
standing over him, pointing a gun, Mr. Lanni said "You win" and
advised that his money was in his left pocket. Appellant reached
into Mr. Lanni's pocket and confiscated fifteen dollars ($15),
which was all the money Mr. Lanni possessed. As Appellant
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walked away, Mr. Lanni called 911 with his cellular phone and
informed the dispatcher of Appellant's description. (N.T.,
8/10/16, pgs. 132-134, 145-148).
Police officers arrived "rather quickly" and requested Mr.
Lanni to enter their patrol car so they could search for Appellant.
Minutes later, another officer advised over police radio that he
stopped someone a few blocks away who matched Appellant's
description. Mr. Lanni was transported to the location, and he
promptly identified Appellant as the person that robbed him. Mr.
Lanni also identified the "handgun" that Appellant used in the
robbery. Although the gun turned out to be a toy, Mr. Lanni
testified that he believed at the time of the robbery - i.e., when
Appellant pointed the object at Mr. Lanni's chest and demanded
his money - that the gun was genuine. (N.T., 8/10/16, pgs. 134-
136, 160-162).
Officer Dilworth testified that on November 11, 2015, he
and his partner were on patrol when they received a radio call
around 1:00 a.m. regarding "a robbery in progress" near the
1100 block of Spruce Street. The officers responded and were
"flagged down by [Mr. Lanni] who stated that he had just been
robbed by point of handgun." A few minutes later the officers
received a radio call from another officer, who patrolling only a
few blocks away, stopped someone matching Appellant's
description. The officers transported Mr. Lanni to the location,
and upon viewing Appellant, Mr. Lanni "said one hundred
percent, that's the guy that robbed me." Police officers
subsequently arrested Appellant. (N.T., 8/10/16, pgs. 40-49).2
Officer Dilworth further testified that Tiara Bethea (Ms.
Bethea) was present with Appellant at the arrest location and
was holding "a canvas bag under her shoulder, holding it tight to
herself." Officer Dilworth noticed the bag because Ms. Bethea
"reach[ed] in it a few times[.]" While viewing the bag's exterior
surface, Officer Dilworth observed the "outline" of an object that
resembled a weapon. Officer Dilworth requested permission to
search the bag but Ms. Bethea said "no" and "tried to walk away
and leave the scene." Because Mr. Lanni reported a gunpoint
robbery and Ms. Bethea "kept reaching in [a] bag" that contained
an object shaped like a gun, Officer Dilworth confiscated the bag
"for everybody's safety on the scene." Officer Dilworth thereafter
discovered a "silver handgun" inside the bag, which Mr. Lanni
identified as the gun used in the robbery. (N.T., 8/10/16, pgs.
53-54).3
Ms. Bethea testified that she and Appellant lived in New
Jersey and came to Philadelphia by train to patronize some bars
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located on South Street. After having a few drinks on South
Street, Ms. Bethea and Appellant decided to return to New Jersey
by the "Speedline" train. As they walked to the train station,
Appellant left Ms. Bethea to purportedly go to the bathroom. Ms.
Bethea, meanwhile, continued walking to the train station. About
eight (8) minutes later, Appellant caught up with Ms. Bethea and
asked to see her bag/purse so he could retrieve a cigarette. Upon
returning the bag, Appellant continued walking with Ms. Bethea
until they were stopped by police. Ms. Bethea testified that her
bag contained no gun when she left home that evening to come
to Philadelphia, or when she gave it to Appellant when he
requested a cigarette. (N.T., 8/10/16, pgs. 186-195, 223).
At the conclusion of trial, the jury found Appellant guilty of
robbery, theft by unlawful taking, PIC, and terroristic threats. On
October 14, 2016, this [c]ourt sentenced Appellant on the
robbery conviction to ten (10) to twenty (20) years' incarceration
under 42 Pa. C.S. § 9714(a)(1), which requires a mandatory
term of ten (10) years' incarceration for a second conviction of a
"crime of violence."4 This Court ruled that Appellant's prior
conviction of arson in the State of New Jersey constituted a first
conviction of a "crime of violence" under 42 Pa. C.S. § 9714(g),5
On the PIC conviction, this [c]ourt sentenced Appellant to a
consecutive term of one (1) to two (2) years' incarceration. This
[c]ourt imposed no sentence on the terroristic threats conviction,
and the theft charge, for purposes of sentencing, merged with
the robbery charge. Overall, Appellant's aggregate sentence was
11 to 22 years' incarceration. (N.T., 10/14/16).
On or around October 19, 2016, Appellant filed a motion
for reconsideration of sentence, claiming this [c]ourt had
erroneously imposed a mandatory sentence under § 9714(a)(1)
for his robbery conviction. On October 20, 2016, following a
hearing on Appellant's motion, this [c]ourt ruled that Appellant's
prior arson conviction was not a "first strike" under § 9714, and
that his robbery conviction did not constitute a "second strike"
requiring a mandatory minimum sentence. (N.T. 10/20/16, pgs.
1-14). Nonetheless, without applying § 9714, this [c]ourt still
determined that 11 to 22 years' incarceration was an appropriate
sentence, and therefore imposed consecutive terms of 10 to 20
years' incarceration for Appellant'[s] robbery conviction and 1 to
2 years’ incarceration for his PIC conviction. (Id., pgs. 26-27).
______
1Mr. Lanni testified that he consumed two drinks of alcohol at the
bar. (N.T., 8/10/16, pg. 137).
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2Officer Walter Henik was the officer that stopped Appellant. He
testified that he likewise was patrolling the area and received a
radio call describing "a black male in his early 20s with a black
waist length jacket, gray pants, black and white baseball cap and
a beard that committed the robbery." A few blocks from the
robbery location, Officer Henik observed Appellant, who matched
the "exact description" of the suspect. Officer Henik therefore
pulled over and told Appellant to put his hands on the patrol car.
After frisking Appellant and radioing that he stopped someone
matching the suspect's description, Officer Henik waited with
Appellant until Officer Dilworth and Mr. Lanni arrived about one
minute later. Once Mr. Lanni identified Appellant, Officer Henik
searched him and recovered $20, consisting of a $10 bill, a $5
bill, and five $1 bills. No firearm was recovered from Appellant.
(N.T., 8/10/16, pgs. 85-96).
3 Although the gun was not real, Officer Dilworth testified that
the object resembled "a semiautomatic handgun.' (N.T.,
8/10/16, pgs. 58, 77, 80).
4§ 9714(a)(1) provides, in relevant part:
(a) Mandatory sentence. ... (1) Any person who is
convicted in any court of this Commonwealth of a crime
of violence shall, if at the time of the commission of the
current offense the person had previously been
convicted of a crime of violence, be sentenced to a
minimum sentence of at least ten years of total
confinement, notwithstanding any other provision of this
title or other statute to the contrary.... See 42 Pa. C.S.
§ 9714(a)(1).
5 § 9714(g) provides, in relevant part:
(g) Definition. - As used in this section, the term 'crime
of violence' means ... arson engendering [sic] persons
or aggravated arson as defined in 18 Pa, C.S. § 3301(a)
or (a.1) ... or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission
of that offense or an equivalent crime in another
jurisdiction. See 42 Pa. C.S. § 9714(g).
Trial Court Opinion, filed 3/15/17, at 1-6.
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On November 9, 2016, Appellant filed his “Reconsideration of Sentence
Nunc Pro Tunc.” In its Order entered on November 15, 2016, the trial court
ordered that Appellant’s petition to reconsider his sentence was accepted as
timely filed and further denied the petition. Appellant filed a timely notice of
appeal on November 18, 2016.
On January 17, 2017, the trial court ordered Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On February 14, 2017, Appellant filed his “Nunc Pro Tunc Statement of Errors
Complained of on Appeal,” and the next day the trial court entered an Order
indicating that the Statement was accepted as timely filed. Therein, Appellant
stated he wished to raise the following, sole issue on appeal:
This [c]ourt erred as a matter of law and abused its
discretion in imposing an excessive sentence, inasmuch as the
[c]ourt failed to adequately examine and investigate [Appellant’s]
background, character and rehabilitative needs pursuant to 42
Pa.C.S. § 9721. The [c]ourt also erred in double counting factors
to justify the excessive sentence, that have already been taken
into consideration in the sentencing guidelines.
See Nunc Pro Tunc Statement of Errors Complained of on Appeal, filed
2/14/17, at ¶ 4(A).1
____________________________________________
1 We remind Appellant the proper manner in which to obtain an extension of
time to file a concise statement is by filing a written application with the trial
court seeking such relief for good cause shown, not the filing of the document
with a “nunc pro tunc” designation as was done herein. Pa.R.A.P. 1925(b)(2).
It is well-settled that the failure to file a timely Rule 1925(b) statement
automatically results in waiver of all issues on appeal, regardless of the length
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In his brief, Appellant presents the following Statement of the Question
Involved:
Did not the lower court err and abuse its discretion by
sentencing [Appellant] to an unreasonable sentence that was
higher than the standard range of the Sentencing Guidelines,
without giving adequate reasons, on the basis of considerations,
including the nature of the offense and his prior criminal history,
that were already factored into the Sentencing Guidelines and did
not the lower court further err in failing to give proper
consideration to [Appellant’s] personal circumstances and
mitigating factors?
Brief for Appellant at 3.
Although Appellant presents a single question for this Court’s review in
his appellate brief, that question is multifaceted. Initially, Appellant asserts
the trial court erred in failing to provide adequate reasons for its sentence.
However, Appellant did not present this specific challenge in his concise
statement of matters complained of on appeal.
It is well-settled that a claim not raised in the lower court is waived and
cannot be raised for the first time on appeal. Pa.R.A.P. 302(a); see also
____________________________________________
of the delay in filing. See Commonwealth v. Hill, 16 A.3d 484, 494
(Pa.2011). However, this Court has concluded that a late 1925(b) statement
by a criminal defendant represented by counsel constitutes per se
ineffectiveness, and the proper remedy is to remand for the filing of such a
statement nunc pro tunc. Commonwealth v. Grohowski, 980 A.2d 113, 114
(Pa.Super. 2009), citing Commonwealth v. Burton, 972 A.2d 428, 433
(Pa.Super.2009) (en banc ); see also Commonwealth v. Myers, 86 A.3d
286, 289 (Pa.Super. 2014) (observing that if an appellant's Rule 1925(b)
statement were late, “we would be obligated as a matter of our rules of
procedure to deem appellate counsel ineffective and to remand for the filing
of a Statement nunc pro tunc.”), citing Pa.R.A.P.1925(c)(3).
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Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super. 2000). In
addition, “[a] theory of error different from that presented to the trial jurist is
waived on appeal, even if both theories support the same basic allegation of
error which gives rise to the claim for relief.” Commonwealth v. Ryan, 909
A.2d 839, 845 (Pa.Super. 2006). Because only claims properly presented
before the trial court are preserved for appeal, Appellant’s contention the trial
court did not state adequate reasons on the record to support its sentence is
waived.
Appellant further maintains the trial court failed to consider his personal
circumstances and mitigating factors prior to imposing his sentence which falls
outside of the Sentencing Guidelines’ standard range and in “double counting”
factors accounted for in the Guidelines. These properly preserved claims
present challenges to the discretionary aspects of Appellant’s sentence. When
reviewing a discretionary aspects of sentencing claim, this Court is guided by
the following principles:
[T]he proper standard of review when considering whether to
affirm the sentencing court's determination is an abuse of
discretion.... [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.... An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.... The rationale behind such broad
discretion and the concomitantly deferential standard of appellate
review is that the sentencing court is in the best position to
determine the proper penalty for a particular offense based upon
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an evaluation of the individual circumstances before it.
Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
(2007) (internal citations omitted).
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).
However, it is well-settled that challenges to the discretionary aspects
of one’s sentence are not reviewable as a matter of right. Id. Before this
Court can address such a discretionary challenge, an appellant must satisfy
the following four-part test:
(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.
Id. (citation omitted).
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 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. Swope, 123 A.3d 333, 338 (Pa.Super. 2015) (citation
omitted). Therefore, an appellant's Rule 2119(f) statement must sufficiently
articulate the manner in which the sentence violates either a specific provision
of the sentencing scheme set forth in the Sentencing Code or a particular
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fundamental norm underlying the sentencing process. Commonwealth v.
Mouzon, 571 Pa. 419, 426, 812 A.2d 617, 622 (2002).
Herein, Appellant has satisfied the first three requirements of the four-
part test. He timely filed his notice of appeal and preserved his claim in a
post-sentence motion. He also includes in his appellate brief his “Statement
of Reasons for Allowance of Appeal from Discretionary Aspects of Sentence”
in accordance with Pa.R.A.P. 2119(f). Thus, we must next determine whether
Appellant has raised a substantial question requiring us to review the
discretionary aspects of the trial court's sentence. Commonwealth v.
Haynes, 125 A.3d 800, 807 (Pa.Super. 2015).
In his Pa.R.A.P. 2119(f) statement, Appellant contends that “[i]n
imposing this unreasonable and excessive sentence, the trial court relied
almost entirely upon the nature of the offense and [A]ppellant’s prior record-
factors already given consideration by the Guidelines- and ignored
[A]ppellant’s needs for rehabilitation in violation of 42 Pa.C.S.A. § 9721.”
Appellant further asserts his aggregate sentence “violates many norms of the
Sentencing Code and is unreasonable and excessive.” Brief for Appellant at
10. These assertions raise substantial questions. See Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (en banc), appeal denied, 633
Pa. 774, 126 A.3d 1282 (2015) (stating claim a sentence imposed
consecutively was unduly excessive coupled with claim the trial court failed to
consider rehabilitative needs raises a substantial question); Commonwealth
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v. Scassera, 965 A.2d 247, 250 (Pa.Super. 2009), appeal denied, 603 Pa.
709, 985 A.2d 219 (2009) (recognizing claim the sentencing court failed to
consider applicable sentencing guidelines, prior to exceeding them, presents
a substantial question); Commonwealth v. Ahmad, 961 A.2d 884, 887
(Pa.Super. 2008) (concluding claim sentencing court failed to consider
defendant's individualized circumstances when imposing sentence raises a
substantial question); Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.
Super. 2003) (stating claim sentencing court “relied on impermissible factors,
by considering factors already included in the sentencing guidelines” raises a
substantial question).
Thus, we turn to the substantive merits of Appellant's question
presented and in doing so employ a well-settled standard of review:
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,
the appellant 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) (citation
omitted), appeal denied, 632 Pa. 671, 117 A.3d 297 (2015). In addition, it is
axiomatic that the trial court “need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
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consideration of the facts of the crime and the character of the offender.”
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa.Super. 2014) (citation
omitted); 42 Pa.C.S.A. § 9721(b). As we shall discuss infra, we find the trial
court complied with this directive herein.
As the trial court in this case had the benefit of a PSI report and a mental
health report, See N.T. Sentence Hearing, 10/14/16, at 17; N.T. Sentence
Hearing, 10/20/16, at 23, this Court presumes that it considered all relevant
sentencing factors and fashioned an individualized sentence. See
Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa.Super. 2005) (stating
where the sentencing court had and considered a PSI report, this fact alone
adequately supported the sentence, and in light of the court's explicit reliance
upon that report, this Court was required to presume it properly weighed the
mitigating factors).
Notwithstanding, the trial court detailed its reasons for imposing
Appellant’s sentence at the sentencing hearings. At the hearing held on
October 14, 2016, the trial court recounted Appellant’s difficult childhood
wrought with physical neglect and abuse which caused him to be placed in
foster care at the age of ten and again at thirteen. The court also noted
Appellant had significant substance abuse problems and was HIV positive. The
court further discussed Appellant’s extensive juvenile adjudications and adult
convictions, although he was only twenty-five years of age at the time he
committed the serious, instant crimes. N.T. Sentencing, 10/14/16, at 17-20.
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At the Amended Sentencing Hearing held on October 20, 2016, the trial
court referenced its remarks from the prior hearing and stated the reasons for
its sentence on the record as follows:
THE COURT: I did go through, at the original sentencing
hearing, all of the information that I have regarding [Appellant]
from his presentence investigation including his family
background, his health background, his work experience, his
substance abuse, which was significant, as well as his mental
health status and prior treatment.
Certainly, we also heard from Mr. Lanni -- and thank you
again, Mr. Lanni, for being here today.
In review of [Appellant’s] significant and lengthy history --
again, as a juvenile, six arrests, six adjudications, four
commitments all in New Jersey starting at the age of 17 -- simple
assault, possession with intent to deliver, aggravated assault on
law enforcement, another simple assault. And then as an adult,
six arrests, four convictions, three commitments, two violation
hearings, two revocations, again all in New Jersey. Possession
with intent to deliver, aggravated assault, and this arson case
leading up to after [Appellant] was released from a three-year
sentence on that arson case.
He comes to Philadelphia and commits the point of gun
robbery on Mr. Lanni.
[Appellant] at 25 years old has a criminal history that
reflects very little time where [Appellant] is not engaged somehow
in the activity of violent crime, selling drugs, and being high on
PCP.
The [S]entencing [G]uidelines create a parameter that we
all use in fashioning appropriate sentences along with
consideration of all of the other factors including [Appellant’s]
criminal history, the amount of time that has elapsed between
criminal convictions. And it is not an inflexible standard.
Defense counsel has reiterated several times that
[Appellant] should have been afforded a greater opportunity to
enter into an open guilty plea and take advantage of a much lower,
much more advantageous sentence.
He, in fact, was offered in the smart room initially a seven-
to 14-year sentence and he rejected that. He was again offered
the opportunity to accept responsibility for a much more favorable
sentence – second strike notwithstanding. He rejected that.
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There are many, many reasons why lenient sentences are
offered prior to trial. Unfortunately, after trial, those reasons no
longer hold. And a person's decision about whether or not they're
going to accept responsibility has to include more than a numbers
calculation.
It certainly has to take into account acceptance of
responsibility for one's actions. And [Appellant] has never done
that. Not to this day.
In arriving at [Appellant’s] sentence on October 14, 2016,
quite frankly, the second strike issue was not a major component
of this [c]ourt's sentence.
The sentence of 11 to 22 years was the sentence that this
Court believed, and still believes, is the appropriate sentence
under these circumstances, notwithstanding the ruling on the
second strike issue, and remains so, notwithstanding the change
in the prior record score.
The reasons for this Court's sentence were, and still are, in
25 years, totally the juvenile and the adult record of 12 arrests
and ten adjudications/convictions for violent crime with very little
space and time in between those convictions, very little
consideration toward rehabilitation, toward acceptance of
responsibility as a law-abiding member of society.
So, [Appellant], your sentence on the robbery is ten to 20
years. The theft merges. The sentence on the possession of an
instrument of crime is one to two years consecutive. And the
sentence on the terroristic threats is no further penalty. The total
sentence is 11 to 22 years.
[Appellant] is not RRRI eligible. He does get credit for time
served. I did recommend a dual diagnosis facility for [Appellant]
to be housed to address his mental health and substance abuse
issues as well as GED enrollment and vocational counseling.
N.T. Sentencing, 10/20/16, at 23-27.
In addition, in its Opinion filed pursuant to Rule 1925(a), the trial court
acknowledged the Sentencing Guidelines recommended a term of sixty (60)
months to seventy-two (72) months in prison (+/- twelve (12) months). After
reiterating the aforementioned reasons it had placed on the record at the
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October 20, 2016, Amended Sentencing Hearing, the court explained the
analysis which preceded its sentence as follows:
The record plainly reflects that when contemplating
Appellant’s sentence, this [c]ourt considered the nature and
gravity of Appellant’s offenses and the impact of his crimes on Mr.
Lanni. This [c]ourt also considered Appellant’s presentence
investigation report, which reveals a vast and violent criminal
history. At age 25, Appellant already amassed a staggering
criminal record that includes multiple violent assaults, drug
offenses, arson, and a wholesale defiance of probation/parole.
Not only is Appellant a repeat offender, he is a violent repeat
offender, whose criminal history demonstrates his danger to the
community and alarming disregard of its citizens. Given
Appellant’s abhorrent and continuous criminal behavior, and
persistent refusal to rehabilitate into a law abiding citizen, this
[c]ourt’s sentence of 11 to 22 years’ incarceration is thoroughly
deserving and justified.
Trial Court Opinion, filed 3/15/17, at 10 (emphasis in original).
Contrary to Appellant’s averments, as reflected by the record, the trial
court properly considered the factors listed in 42 Pa.C.S.A. § 9721(b) and in
doing so did not “double count” the seriousness of the offense when
resentencing him. The trial court emphasized not only the gravity of
Appellant’s crimes, but also their impact upon the victim, the danger Appellant
posed to the public and the lack of evidence of remorse and rehabilitation
Appellant had displayed. In addition, the court took into account Appellant’s
troubled childhood and medical issues as is evident upon a review of the
October 14, 2016, hearing transcript. The trial court also considered
Appellant’s personal and rehabilitative needs in fashioning a sentence
recommending that Appellant be housed in a dual diagnosis facility to address
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his mental health and substance abuse issues and that he be enrolled in a
GED program and receive vocational counseling. N.T. Sentencing, 10/20/16,
at 27.
Accordingly, we conclude the trial court did not abuse its discretion
when it imposed its sentence on October 20, 2016.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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