Com. v. Schaeffer (memorandum)

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J-S04028-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. FRANK JOSEPH SCHAEFFER Appellant No. 1459 EDA 2012 Appeal from the Judgment of Sentence April 25, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001360-2011 BEFORE: STEVENS, P.J., GANTMAN, J., and LAZARUS, J. MEMORANDUM BY GANTMAN, J.: Filed: February 12, 2013 Appellant, Frank Joseph Schaeffer, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial conviction for criminal conspiracy to commit burglary, theft by unlawful taking or disposition, and receiving stolen property.1 We affirm. In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add only that the trial court sentenced Appellant on April 25, 2012, to seven and one-half (7½) to sixteen (16) years incarceration for criminal conspiracy to commit burglary. On Monday, May 7, 2012, Appellant ____________________________________________ 1 18 Pa.C.S.A. §§ 903, 3921(a), and 3925 respectively. J-S04028-13 timely filed post-sentence motions, which the court denied the same day. On May 15, 2012, Appellant timely filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P 1925(b), and Appellant complied. Appellant raises four issues for our review: DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION WHEN IT DENIED APPELLANT S MOTION TO CLARIFY THE VERDICT AND FIND THE VERDICT WAS AMBIGUOUS WITH RESPECT TO THE CRIMINAL CONSPIRACY CHARGE BECAUSE OF THE FAILURE TO INCLUDE ON THE VERDICT SHEET THE CHARGE APPELLANT ALLEGEDLY CONSPIRED TO COMMIT? WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE CHARGE OF CONSPIRACY TO COMMIT BURGLARY BECAUSE THE RECORD IS DEVOID OF ANY EVIDENCE ESTABLISHING BEYOND A REASONABLE DOUBT THAT APPELLANT ENTERED AN AGREEMENT WITH ANY OTHER PERSON THE OBJECT OF WHICH WAS TO BURGLARIZE THE VICTIM S RESIDENCE? DID THE TRIAL COURT ERR BY GRADING THE THEFT CHARGES AS MISDEMEANORS OF THE SECOND DEGREE BECAUSE THE COMMONWEALTH FAILED TO MEET ITS BURDEN OF ESTABLISHING THE VALUE OF THE PROPERTY ALLEGEDLY STOLEN IN THIS MATTER AND THEREFORE, THE CRIMES SHOULD HAVE BEEN GRADED AS MISDEMEANORS OF THE THIRD DEGREE AS A MATTER OF LAW? DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION BY IMPOSING A SENTENCE OUTSIDE THE SUGGESTED GUIDELINES RANGE BECAUSE THE TRIAL COURT GAVE ITS REASON FOR EXCEEDING THE GUIDELINES APPELLANT S CRIMINAL RECORD, A GROUND ALREADY FACTORED INTO THE SENTENCING GUIDELINES? (Appellant s Brief at 3). -2- J-S04028-13 Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. 910 (Pa.Super. 2000). Commonwealth v. Sierra, 752 A.2d Prior to 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. § 9781(b). Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court s jurisdiction by including in his brief a separate concise statement demonstrating that there is 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. Commonwealth v. Williams, 562 A.2d -3- J-S04028-13 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original) (internal quotation marks omitted). What constitutes a substantial question must be evaluated on a caseby-case basis. 2003). Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 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. Sierra, supra at 912-13. A claim that a sentence is manifestly excessive might raise a substantial question if the appellant s Rule 2119(f) statement sufficiently articulates the manner in which the sentence imposed violates a specific provision of the Sentencing Code or the norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d at 627. Sentencing is a matter vested in the sound discretion of the sentencing court. Commonwealth v. Lee, 876 A.2d 408, 413 (Pa.Super. 2005). On appeal, this Court will not disturb the judgment of the sentencing court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super. 2006). When imposing a sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines, but is not bound by them. Commonwealth v. Yuhasz, 592 Pa. 120, 132, 923 A.2d 1111, 1118 (2007) (noting guidelines are purely advisory in nature ). The guidelines are merely advisory guideposts that -4- J-S04028-13 recommend rather than require a given sentence. Commonwealth v. Walls, 592 Pa. 557, 570, 926 A.2d 957, 965 (2007). A court may depart from the guidelines, provided the court gives its reasons for the departure. Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super. 2001). Such reasons include the need to protect the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super. 2008), appeal denied, 602 Pa. 666, 980 A.2d 607 (2009). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Michael E. Erdos, we conclude Appellant s issues merit no relief. The trial court properly disposes of the questions presented. (See Trial Court Opinion, filed August 14, 2012, at 4-10) (finding: (1) court provided clear jury instructions specifying charge of conspiracy to commit burglary, made no mention of any other type of conspiracy, and jury issued unambiguous verdict convicting Appellant of conspiracy to commit burglary; (2) during short time that burglary was in progress SUV was parked at victim s house, passenger alit from SUV, SUV left victim s house and returned within minutes, Appellant matched description of SUV passenger; shortly thereafter, Appellant was discovered inside SUV in possession of proceeds of burglary, Appellant s and cohort s fingerprints were on stolen -5- jewelry and SUV; therefore, J-S04028-13 circumstantial evidence provided sufficient basis for jury to infer Appellant conspired with cohort to burglarize victim s residence; (3) police officers testified at trial to quantity and characteristics of dozens of pieces of stolen jewelry; Commonwealth presented photographs of stolen jewelry; evidence at trial was sufficient to allow jury to value stolen property at more than fifty dollars; therefore, evidence was sufficient to support second degree misdemeanor gradation; and (4) Appellant s ten prior burglary convictions and multiple state sentences did not deter Appellant s criminal conduct, Appellant committed most recent burglary soon after release on parole; court cited need to protect public from repeat offender and Appellant s low probability of rehabilitation as reasons for departure from sentencing guidelines). Accordingly, we affirm on the basis of the trial court opinion. Judgment of sentence affirmed. -6-

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