J-A26016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER WILLIAM POPICHAK, :
:
Appellant : No. 2387 EDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002162-2020
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JUNE 29, 2023
Appellant, Christopher William Popichak, appeals from the judgment of
sentence entered in the Chester County Court of Common Pleas, following his
open guilty plea to burglary.1 We affirm.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with burglary, criminal trespass, and
theft by unlawful taking in connection with the theft of various items from the
property of Joseph and Rosalie Ilene Hemler (“Victims”). A jury trial
commenced on August 24, 2021. Prior to the commencement of trial,
Appellant expressed dissatisfaction with his attorney and requested a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3502(a).
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continuance to obtain new representation. The court denied Appellant’s
request, finding that Appellant’s issues with his attorney were based on
counsel’s refusal to file frivolous motions that Appellant asked him to file. On
the first day of trial, Victims testified by video. Mrs. Hemler, who was 77 years
old at the time of trial, testified that Appellant’s grandmother was one of her
best friends and because of this connection, Mr. Hemler hired Appellant to do
work on their property when Appellant was having difficulty finding a job. Mr.
Hemler, who was 80 years old at the time of trial, testified that Appellant
worked for him on and off for a few months, doing yard work and clearing out
stockpiled tools and spare parts that had accumulated on his property from
his years of working as a mechanic and electrician. The spare supplies were
kept in Mr. Hemler’s shop, which was located in a separate structure from
their residence. The shop was generally kept locked but was always open
when Appellant came to work so that he could access tools and supplies to do
his work. Appellant did not do any work inside the house except one instance
when he helped move a piece of furniture down the stairs. Victims did not
give Appellant permission to enter their residence freely and Appellant always
knocked on the door before entering. Victims gave Appellant permission to
use the bathroom that was located right inside the entrance to the house from
the garage but Appellant always informed Mr. Hemler prior to doing so.
On April 6, 2020, Mr. Hemler asked Appellant to come to the property
to help him tear down an old generator in order to dispose of it. Shortly after
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lunch, Mr. Hemler got a call and needed to leave the property to run an errand.
Prior to leaving, Mr. Hemler showed Appellant which parts to remove from the
generator and instructed Appellant to continue working while he was gone.
Mr. Hemler expected that the work would take Appellant the whole day and
into the next day. Approximately 20 to 30 minutes after he left, Mr. Hemler
received a call from Appellant stating that he completed the work. Mr. Hemler
told Appellant that additional panels needed to be removed from the generator
and instructed him to continue working.
Mrs. Hemler testified that on the afternoon of April 6, 2020, she was
working on a puzzle in a room on the second floor of her house when Appellant
unexpectedly entered the room. She found his presence upstairs strange
because she did not hear him knock and did not permit him to enter the house.
However, she did not ask him to leave because he was her friend’s grandson.
Appellant informed her that he finished the work that Mr. Hemler gave him
and asked if there was anything else for him to do. She told him that he could
leave if he had completed his work. Appellant asked Mrs. Hemler if there was
a bathroom on the second floor. After Mrs. Helmer told Appellant where the
bathroom was located, Appellant was out of her line of sight on the second
floor for several minutes before he left. Victims’ bedroom and their son’s
bedroom was located on the second floor and the doors to the bedrooms were
typically kept shut.
Mr. Hemler testified that he returned to his property at approximately
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5:30 P.M. that evening and Appellant was not present on the property. Mr.
Hemler checked on the generator that Appellant was asked to work on and
noted that Appellant did not remove any parts from the generator except some
copper bars and copper wires. The next morning, Appellant texted Mr. Hemler
that he was sick. The following day, Appellant arrived at the property and Mr.
Hemler asked him to do some light yard work because it was expected to rain.
While Appellant was on the property on April 8, 2020, Victims’ son, Todd
Hemler, returned home after being away for a few days and noticed that the
coin jar in his room was missing. He checked the house and noticed that the
larger coin jar located in Mr. Helmer’s downstairs office was also missing.
Victims confirmed that Appellant was the only other individual who had
entered the house recently. Victims called the police and Appellant was
questioned by the officers. Appellant left the property after being questioned
and returned later in the day. Appellant walked up to Mr. Hemler and
attempted to give Mr. Hemler an envelope containing $900.00. Appellant
stated that he did not steal anything but wanted Mr. Hemler to have the
money. Mr. Hemler testified that he refused to accept the envelope and
immediately informed the police about the encounter. Additionally, the
Commonwealth admitted into evidence a property receipt from a scrapyard
and Mr. Hemler identified items on the receipt which were from his shop, taken
without his knowledge or permission.
After the first day of trial, Appellant had a phone conversation with his
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grandmother from prison, which was recorded. In the conversation, Appellant
told his grandmother to state on the witness stand that Appellant was locked
up for 13 months without bail for a crime he did not commit in order to cause
a mistrial. When his grandmother stated that she would not do so, Appellant
said he would take matters into his own hands. The next morning, prior to
the commencement of the second day of testimony, the Commonwealth
informed Appellant of their knowledge of this phone call and sent troopers to
interview Appellant’s grandmother about the conversation. After some
negotiations, Appellant agreed to enter an open guilty plea to burglary and
the Commonwealth agreed not to seek a minimum sentence above the bottom
of the standard guideline sentencing range, which was 48 months’
imprisonment.
The court conducted a colloquy with Appellant regarding his open guilty
plea to ensure that his plea was knowing, voluntary and intelligent. The court
explained to Appellant that although the Commonwealth agreed not to seek a
minimum sentence higher than 48 months, the court was not bound by the
Commonwealth’s position. Appellant indicated that he understood.
Additionally, the court specifically asked Appellant if he was satisfied with his
attorney’s representation in his plea negotiation considering his prior claim of
dissatisfaction with his counsel. Appellant indicated that he was satisfied with
counsel’s representation, had time to discuss his plea with counsel, and had
no questions about the rights he was giving up by entering a guilty plea.
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Satisfied that Appellant’s plea was knowing, voluntary, and intelligent, the
court accepted Appellant’s open guilty plea on August 25, 2021, and ordered
a pre-sentence investigation(“PSI”) report.
Appellant filed a pro se motion to withdraw guilty plea on September 3,
2021. Appellant retained new counsel, who entered his appearance on
September 7, 2021, and filed a counseled motion to withdraw the guilty plea
on September 16, 2021. The court held a hearing on the motion on October
1, 2021. Appellant testified that he was innocent of the crime and felt
pressured to plead guilty because his prior counsel was not properly prepared
to defend him at trial and failed to pursue viable defenses. The
Commonwealth introduced the transcript of the phone conversation Appellant
had with his grandmother regarding Appellant’s attempt to cause a mistrial as
evidence that Appellant made a knowing, voluntary and intelligent decision to
plead guilty after being confronted with the weight of the evidence against
him. The Commonwealth further argued that it would be prejudiced by
Appellant’s withdrawal of the guilty plea because a full day of testimony had
already taken place in front of a jury prior to Appellant’s plea. On October 7,
2021, the court denied Appellant’s pre-sentence motion to withdraw the guilty
plea.
On October 22, 2021, the court conducted a sentencing hearing. The
Commonwealth refrained from making any sentencing recommendation, and
the court sentenced Appellant to an aggravated range sentence of six to
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fifteen years of incarceration. On October 26, 2021, Appellant filed a motion
for reconsideration of sentence and a second motion to withdraw the guilty
plea. Appellant filed a third motion to withdraw the guilty plea on October 28,
2021. The court denied all three motions on November 8, 2021. Appellant
filed a timely notice of appeal on November 17, 2021. The court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal on November 19, 2021, and Appellant timely complied on
December 3, 2021.
Appellant raises the following issues for our review:
1) Did the trial court abuse its discretion in refusing to allow
Appellant to withdraw his plea of guilty to the charge of
burglary prior to sentencing, when there was no real
prejudice to the Commonwealth, Appellant asserted his
innocence, and there were viable defenses to the charges
against him?
2) Did the trial court abuse its discretion in refusing to allow
Appellant to withdraw his plea of guilty to the charge of
burglary after sentencing, when the court sentenced
Appellant to a much higher sentence than the sentence that
the Commonwealth agreed to recommend at the time of the
open plea?
3) Did the court abuse its discretion in issuing an excessive
sentence of six to fifteen years of incarceration on the
charge of burglary, which is above the standard sentencing
range and fails to consider Appellant’s rehabilitative needs
and the needs of his elderly grandparents who rely on
Appellant for care?
(Appellant’s Brief at 14-17) (re-worded for clarity).
In his first issue on appeal, Appellant alleges that he is innocent in this
matter and only entered a guilty plea to burglary because his original trial
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counsel was unprepared for trial. Appellant asserts that he attempted to
obtain new counsel prior to the commencement of trial because trial counsel
did not properly evaluate and pursue viable defenses to the charge of
burglary. Appellant argues that he had permission to be on Victims’ property
and there were other individuals who had access to the property who had a
history of stealing items from Victims. Appellant further contends that there
was no real prejudice to the Commonwealth to granting the pre-sentence
motion to withdraw his guilty plea because the only testimony that was
presented prior to the entry of the plea was the pre-recorded video testimony
of Victims. Appellant submits that he established a plausible assertion of
innocence and there was no substantial prejudice to the Commonwealth.
Appellant concludes that under these circumstances, the court abused its
discretion in refusing to allow Appellant to withdraw his guilty plea prior to
sentencing, and this Court should vacate the judgment of sentence and
remand for further proceedings. We disagree.
Our review of the denial of a pre-sentence motion to withdraw a guilty
plea implicates the following principles:
[W]e recognize that at “any time before the imposition of
sentence, the court may, in its discretion, permit, upon
motion of the defendant, or direct sua sponte, the
withdrawal of a plea of guilty or nolo contendere and the
substitution of a plea of not guilty.” Pa.R.Crim.P 591(A).
The Supreme Court of Pennsylvania recently clarified the
standard of review for considering a trial court’s decision
regarding a defendant’s pre-sentence motion to withdraw a
guilty plea:
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Trial courts have discretion in determining whether a
withdrawal request will be granted; such discretion is
to be administered liberally in favor of the accused;
and any demonstration by a defendant of a fair-and-
just reason will suffice to support a grant, unless
withdrawal would work substantial prejudice to the
Commonwealth.
Commonwealth v. Carrasquillo, 631 Pa. 692, [704,] 115
A.3d 1284, 1285, 1291-92 (2015) (holding there is no per
se rule regarding pre-sentence request to withdraw a plea,
and bare assertion of innocence is not a sufficient reason to
require a court to grant such request). We will disturb a
trial court’s decision on a request to withdraw a guilty plea
only if we conclude that the trial court abused its discretion.
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa.Super.
2013)[, appeal denied, 624 Pa. 687, 87 A.3d 318 (2014)].
Commonwealth v. Davis, 191 A.3d 883, 888-89 (Pa.Super. 2018), appeal
denied, 650 Pa. 308, 200 A.3d 2 (2019).
[A] defendant’s innocence claim must be at least plausible
to demonstrate, in and of itself, a fair and just reason for
presentence withdrawal of a plea. More broadly, the proper
inquiry on consideration of such a withdrawal motion is
whether the accused has made some colorable
demonstration, under the circumstances, such that
permitting withdrawal of the plea would promote fairness
and justice.
Carrasquillo, supra at 705-06, 115 A.3d at 1292 (internal citation omitted).
(explaining that court should consider plausibility and sincerity of defendant’s
assertion of innocence, as well as circumstances surrounding pre-sentence
motion to withdraw plea, including motivation and timing of request). “[B]oth
the timing and the nature of the innocence claim, along with the relationship
of that claim to the strength of the government’s evidence, are relevant.”
Commonwealth v. Islas, 156 A.3d 1185, 1190 (Pa.Super. 2017).
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Additionally, a defendant’s failure to establish a plausible claim of
innocence renders unnecessary a consideration of whether pre-sentence
withdrawal of the guilty plea would substantially prejudice the
Commonwealth. Carrasqullio, supra at 706 n.9, 115 A.3d at 1293 n.9
(declining to address prejudice to Commonwealth, because defendant failed
to assert plausible claim of innocence); Commonwealth v. Hvizda, 632 Pa.
3, 9, 116 A.3d 1103, 1107 (2015) (holding pre-sentence request to withdraw
plea failed where defendant made only bare assertion of innocence).
Instantly, the trial court set forth its reasons for denying Appellant’s pre-
sentence motion to withdraw the guilty plea as follows:
In this case, a full day of trial on this matter had already
occurred when [Appellant] decided to accept a plea. The
jury was present and waiting for the second day of the trial
to begin. Approximately half of the Commonwealth’s case
was already completed, and the Commonwealth was ready
to proceed with the rest of the trial. All remaining
Commonwealth witnesses were in the courthouse waiting
for their turn to testify. It was clear that the case against
[Appellant] was very strong. The evidence included
videotaped trial testimony of the victims, video from the
scrap metal place where [Appellant] sold the items he stole
from the Hemlers, and testimony showing that [Appellant]
attempted to pay back $900 to the Hemlers. The
Commonwealth also had videotaped evidence of [Appellant]
at a Coinstar machine on the day the coins were stolen from
the Hemlers in which he cashed in over $500 worth of coins,
which is the amount the Hemlers estimated were in the coin-
filled containers that were stolen from their house. Phone
records further showed that [Appellant] was in the area of
the Coinstar machine on April 6, 2020, and was in the area
of the scrap metal place the following day. Based on the
overwhelming evidence against [Appellant], it was clear that
he would be convicted of the crimes charged.
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In order to avoid the inevitable, and to negotiate the
maximum amount of time that he would spend in prison,
[Appellant] decided to accept a plea. Prior to accepting the
plea, [Appellant] testified that he was satisfied with the
services provided to him by his attorney and that he did, in
fact, commit the crime to which he was pleading guilty.
* * *
The court … notes that prior to trial commencing,
[Appellant] expressed some dissatisfaction with his
attorney. The court believes that his trial counsel would not
file meritless motions requested by [Appellant], leading to
some of his dissatisfaction. The court further believes that
[Appellant] was alleging dissatisfaction with his attorney in
order to delay trial. [Appellant] and his attorney were given
time to talk and afterward, [Appellant] decided to continue
working with his attorney. He testified that he was satisfied
with his attorney when he entered into his plea.
* * *
The court believes that [Appellant]’s attempt to withdraw
his guilty plea is a tactic he is using to delay the inevitable….
It is clear that [Appellant] was going to do anything he could
in order to delay the trial of this matter. A blaring example
of this is documented in a prison phone call with his
grandmother after the first day of trial…. He was trying to
intentionally cause a mistrial after the court denied his
attempt to fire his attorney the morning of his trial. When
his grandmother refused to go along with his plan, he
decided to plead guilty. While [Appellant] is attempting to
claim that he is innocent of the charges against him, the
court finds his testimony completely not credible, especially
in light of the strong evidence against him and his repeated
attempts to delay trial at any cost. The court believes that
[Appellant] accepted a plea with the intention of
withdrawing it later so that he could delay having a jury
deliberate on the charges against him.
(Trial Court Order and Opinion, filed 10/7/21, at 2-4).
We agree with the court’s analysis. Appellant’s assertions that trial
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counsel was unprepared and failed to pursue viable defenses are belied by the
record. Trial counsel vigorously cross-examined Victims regarding whether
Appellant had permission to enter their residence, inquiring whether Appellant
was permitted to enter freely to use the bathroom and whether Mrs. Hemler
asked Appellant to leave when she discovered him inside the house.
Additionally, trial counsel’s questions resulted in admissions from Victims that
they believed that their grandson and Todd’s girlfriend’s son had taken items
from their property on prior occasions. The record clearly demonstrates that
trial counsel was pursuing the very defenses that Appellant now claims support
his assertion of innocence.
Nevertheless, as the trial court properly noted, the evidence against
Appellant was overwhelming. Victims consistently testified that although they
asked Appellant to work on the property, they did not give him permission to
enter the residence without invitation. Additionally, Victims testified that
neither their grandson nor Todd’s girlfriend’s son was on their property at the
time that the money jars went missing. Further, the Commonwealth had video
footage and cell phone records that connected Appellant to the sale of the
missing items from Victims’ home. Based on the strength of the evidence
against Appellant, we agree with the court that Appellant failed to demonstrate
a plausible claim of innocence. See Carrasquillo, supra; Islas, supra.
Additionally, the court did not find Appellant’s claim of innocence
credible in light of the circumstances surrounding Appellant’s request to
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withdraw his plea. Appellant implored the court to postpone trial by
requesting new counsel on the morning that trial was set to begin. When the
court refused to do so, Appellant asked his grandmother to make statements
on the stand to cause a mistrial. When his grandmother refused to do so and
Appellant was confronted by the Commonwealth with evidence of his recorded
phone call, Appellant entered into a guilty plea that he subsequently
attempted to withdraw. On this record, we discern no error in the court’s
determination that Appellant failed to demonstrate a fair and just reason to
withdraw his guilty plea because his claims of innocence were insincere and
motivated by a desire to delay court proceedings. See Carrasquillo, supra;
Davis, supra; Islas, supra. Appellant’s failure to establish a plausible claim
of innocence renders unnecessary a consideration of a prejudice analysis. See
Carrasquillo, supra, supra. Therefore, Appellant’s first issue on appeal
merits no relief.
In his second issue on appeal, Appellant asserts that the Commonwealth
agreed at the time of the guilty plea that it would not recommend a sentence
longer than 48 months’ imprisonment. Appellant argues that the court was
either required to abide by the sentence recommendation or allow Appellant
to withdraw his plea. Appellant contends that the fact that Appellant entered
an open plea rather than a negotiated plea is a “distinction without a
difference” and the court should be bound by the sentence recommendation
of the Commonwealth. Appellant avers that the guilty plea colloquy that
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Appellant signed “clearly says that if the judge does not accept the
recommendation, the plea can be withdrawn.” (Appellant’s Brief at 69).
Appellant concludes that the court abused its discretion by refusing to permit
Appellant to withdraw his plea when it imposed a longer sentence than the
Commonwealth agreed to recommend. We disagree.
This Court has explained:
[P]ost-sentence motions for withdrawal [of a guilty plea] are
subject to higher scrutiny [than pre-sentence motions to
withdraw a plea] since courts strive to discourage entry of
guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court
were to deny his post-sentence motion to withdraw a guilty
plea. Manifest injustice may be established if the plea was
not tendered knowingly, intelligently, and voluntarily.
Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa.Super. 2018) (citation
omitted).
Pennsylvania law presumes a defendant who entered a guilty plea was
aware of what he was doing and bears the burden of proving otherwise.
Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). A defendant
who decides to plead guilty is bound by the statements he makes while under
oath, “and he may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.” Id. at 523. “Our
law does not require that a defendant be totally pleased with the outcome of
his decision to plead guilty, only that his decision be voluntary, knowing and
intelligent.” Id. at 524.
Here, at the outset we note that Appellant’s written guilty plea colloquy
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makes clear that Appellant was entering an open guilty plea and not a
negotiated plea agreement. In other words, there was no agreement by the
parties as to the sentence in this case. Rather, the Commonwealth’s only
agreement was that it would “not ask for time above the bottom of the
standard guideline range-48 months.” (Guilty Plea Colloquy, filed 8/25/21, at
3). Appellant seems to misinterpret this provision of his guilty plea as the
Commonwealth agreeing to recommend a minimum sentence of no longer
than 48 months’ imprisonment. Nevertheless, the fact that the
Commonwealth agreed not to seek a minimum sentence above 48 months’
imprisonment, is not the same as the Commonwealth asking the court to
impose a minimum sentence of no greater than 48 months’ imprisonment or
even recommending a minimum sentence of 48 months’ imprisonment. The
Commonwealth stood by its position not to seek a minimum sentence greater
than 48 months’ imprisonment. In fact, the Commonwealth ultimately stood
silent regarding any sentencing recommendation. As Appellant’s argument is
largely predicated on this misinterpretation, he is not entitled to relief on his
second issue on appeal.
Further, the written plea colloquy states that “[i]n pronouncing
sentence, the court must consider, BUT IS NOT BOUND BY, the guidelines
issued by the Pennsylvania Commission on Sentencing.” (Guilty Plea
Colloquy, filed 8/25/21, at 8) (capitalization in original). At the plea hearing,
the court ensured that Appellant understood this provision:
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The Court: Do you understand the guidelines are what they
sound like, they’re suggestions to the judge of what the
sentence should be?
[Appellant]: Yes.
The Court: And if I want to sentence above what the
suggestion is or I want to sentence below what the
suggestion is, I listen to the arguments of counsel, but I just
explain what I’m doing. Okay?
[Appellant]: Yes.
(N.T. Plea Hearing, 8/25/21, at 5).
Thus, Appellant acknowledged that the court had sentencing discretion
in this case and was not bound by the arguments of counsel or the sentencing
guidelines. The record discloses that Appellant made a voluntary, knowing
and intelligent decision to enter an open guilty plea. See Pollard, supra.
Accordingly, Appellant’s claim that the court abused its discretion in denying
his post-sentence motion to withdraw his guilty plea is meritless. See Kehr,
supra.
In his third issue, Appellant argues that the sentence of 6 to 15 years
of incarceration is excessive as it greatly exceeds the standard sentencing
range, which is 48 to 60 months’ incarceration in this case. Appellant asserts
that the court failed to adequately state its reasons for exceeding the standard
guidelines. Appellant contends that the court failed to consider Appellant’s
rehabilitative needs. Appellant claims the court ignored mitigating factors
such as the care Appellant provides for his elderly grandparents, and
Appellant’s willingness to seek psychological help and pursue vocational
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education. Appellant concludes the court abused its discretion by imposing
an excessive sentence that did not properly weigh Appellant’s rehabilitative
needs or consider mitigating factors, and this Court should vacate and remand
for resentencing. We disagree.
As presented, Appellant’s claim challenges the discretionary aspects of
sentencing. See Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),
appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court
focused solely on serious nature of crime without adequately considering
protection of public or defendant’s rehabilitative needs concerns court’s
sentencing discretion); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,
668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195
(1996) (explaining claim that court did not consider mitigating factors
challenges discretionary aspects of sentencing).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of
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
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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. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Phillips, supra at 112
(emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). “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
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process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)
(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.
2011)).
“[A]n excessive sentence claim—in conjunction with an assertion that
the court failed to consider mitigating factors—raises a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal
denied, 629 Pa. 636, 105 A.3d 736 (2014). See also Commonwealth v.
Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding defendant’s claim that court
failed to consider factors set forth under Section 9721(b) and focused solely
on seriousness of defendant’s offense raised substantial question). A
substantial question also exists where an appellant alleges the court imposed
a sentence outside of the guidelines without specifying sufficient reasons.
Commonwealth v. Holiday, 954 A.2d 6 (Pa.Super. 2008), appeal denied,
601 Pa. 694, 972 A.2d 520 (2009)
This Court reviews discretionary sentencing challenges based on the
following standard:
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. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
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“[A] court is required to consider the particular circumstances of the
offense and the character of the defendant.” Commonwealth v. Griffin, 804
A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984,
162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. If the sentencing court has the benefit of a
PSI report, the law presumes the court was aware of the relevant information
regarding the defendant’s character and weighed those considerations along
with any mitigating factors. Commonwealth v. Tirado, 870 A.2d 362
(Pa.Super. 2005).
When considering the propriety of imposing an aggravated range
sentence, this Court has observed:
[T]he guidelines were implemented to create greater
consistency and rationality in sentencing. The guidelines
accomplish the above purposes by providing a normal for
comparison, i.e., the standard range of punishment, for the
panoply of crimes found in the crimes code and by providing
a scale of progressively greater punishment as the gravity
of the offense increases….
The provision of a “norm” also strongly implies that
deviation from the norm should be correlated with facts
about the crime that also deviate from the norm for the
offense, or facts relating to the offender’s character or
criminal history that deviates from the norm and must be
regarded as not within the guidelines contemplation. Given
this predicate, simply indicating that an offense is a serious,
heinous or grave offense misplaces the proper focus. The
focus should not be upon the seriousness, heinousness or
egregiousness of the offense generally speaking, but, rather
upon how the present case deviates from what might be
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regarded as a “typical” or “normal” case of the offense under
consideration.
An aggravated range sentence … will thus be justified to the
extent that the individual circumstances of [an appellant’s]
case are atypical of the crime for which [he] was convicted,
such that a more severe punishment is appropriate.
Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (internal
citation omitted).
Instantly, Appellant raised his sentencing issue in a timely post-
sentence motion, timely notice of appeal, and in his Rule 2119(f) statement.
Further, Appellant’s assertion that the sentence was manifestly excessive in
conjunction with his claim that the court failed to weigh his rehabilitative needs
and/or consider mitigating factors raises a substantial question. See Raven,
supra; Trimble, supra. Appellant’s claim that the court also failed to set
forth adequate reasons for imposition of the aggravated-range sentence also
raises a substantial question for our review. See Holiday, supra.
Accordingly, we proceed to address the merits of Appellant’s sentencing
claims.
Here, the court had the benefit of a PSI report, defense counsel’s
arguments, and statements from Appellant and his grandmother at
sentencing. Thus, we can presume that the court was fully aware of and
considered mitigating factors such as Appellant’s role in caring for his
grandparents and his expressed willingness to seek psychological help and
vocational education. See Tirado, supra. Further, contrary to Appellant’s
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assertion, the court provided an on-the-record statement of reasons why it
imposed a sentence in the aggravated range of the sentencing guidelines. The
court noted Appellant’s extensive criminal history which included multiple prior
convictions for burglary. Appellant was on parole for a prior burglary
conviction at the time that he committed the instant offense and has a history
of repeated probation and parole violations. Appellant also attempted to have
his grandmother cause a mistrial in this case, demonstrating a disregard for
the judicial process and an unwillingness to take accountability for his actions.
The court additionally considered the impact Appellant’s actions had on his
elderly victims who gave Appellant a job at their property at the request of a
close friend. Mrs. Hemler stated that she was devastated at the loss of her
friendship with Appellant’s grandmother following this incident, and
Appellant’s actions destroyed Victims’ sense of security. The court further
noted that Appellant failed to express any remorse for his actions, declining
to address Victims when given the opportunity to do so. The record
demonstrates that the court considered Appellant’s rehabilitative needs but
determined that his potential for rehabilitation was low and outweighed by the
need to protect the public based on his criminal record, repeated violations of
probation and parole, and lack of remorse towards the elderly victims. On
this record, we discern no abuse of discretion in court’s determination that a
sentence in the aggravated range was appropriate. See Fullin, supra;
McNabb, supra. Accordingly, Appellant is not entitled to relief on his
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challenge to the discretionary aspects of sentencing, and we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2023
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Com v. Popichak, C.
Combined Opinion