J. S17010/15

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee :

: v. : : BRIAN CHRISTOPHER PO PE, JR., : : Appellant : No. 589 WDA 2014 Appe al from the Judgment of Sentence March 21, 2014 In the Court of Common Pleas of Bedford County Criminal Division No(s).: CP - 05 - CR - 0000101 - 2013 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED MARCH 24, 2015 Appellan t, Brian Christopher Pope, Jr., appeals from the judgment of sentence entered in the Bedford County Court of Common Pleas following a jury trial and his convictions for, inter alia , robbery, 1 conspiracy, 2 receiving stolen property, 3 persons not to possess firearms, 4 theft, 5 terroristic

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 3701(a)(1)(ii). 2 18 Pa.C.S. § 903(c). 3 18 Pa.C.S. § 3925(a). 4 18 Pa.C.S. § 6105(a)(1). 5 18 Pa.C.S. § 3921(a).J. S17010/15

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threats, 6 and recklessly endangering another person. 7 He challenges the discretionary aspects of his aggregate sentence of nineteen to forty - one years’ imprisonment. We affirm. We adopt the facts and procedural history set forth in the trial court’s decision. See Trial Ct. Op., 8/25/14, at 1 - 4. Appellant filed, and the court denied, a timely post - sentence motion. Appellant timely appealed and also filed and served a Pa.R.A.P. 1925(b) statement that same day. Two days lat er, the court, in an apparent oversight, ordered Appellant to comply with Pa.R.A.P. 1925(b). Appellant raises the following issue: Given the lower court’s cited justifications, did it commit an abuse of discretion in imposing consecutive, aggravated - rang e terms of imprisonment when sentencing [Appellant], thereby imposing an aggregate sentence too harsh relative to the underlying criminal conduct, and neglecting or failing to take adequate consideration of his rehabilitative needs? Appellant’s Brief at 6 . For his sole issue, Appellant contends the trial court failed to consider his character, placed undue emphasis on the seriousness of the offenses, and did not satisfy the sentencing factors. We hold Appellant is due no relief. This Court has stated t hat

6 18 Pa.C.S. § 2706(a)(1). 7 18 Pa.C.S. § 2705.J. S17010/15

- 3 - [c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching the merits of a discretionary sentencing issue: [W]e conduct a four part analysis to determine: (1) whether appella nt 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). Objections to the discretionary aspects of a sentence are generally waived if they are not r aised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Evans , 901 A.2d 528, 533 - 34 (Pa. Super. 2006) (some citations and punctuation omitted).

[T]he Rule 2119(f) statement must specify where t he sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated ( e.g. , the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double - counted fac tors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm . . . . Commonwealth v. Googins , 748 A.2d 721, 727 (Pa. Super. 2000) ( en banc ). “Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.” Id.J. S17010/15

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We are aware that generally, a challenge to the trial court’s discretion to impose its sentences concurrently or consecutively ordinarily does not raise a substantial question. Commonwealth v. Mastromarino , 2 A.3d 581, 586 - 87 (Pa. Super. 2010).

In fact, this Court has recognized the imposition of consecutive, rather than concu rrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment. That is in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case. Commonwealth v. Au stin , 66 A.3d 798, 808 (Pa. Super.) (some punctuation and citations omitted), appeal denied , 77 A.3d 1258 (Pa. 2013). Instantly, Appellant timely appealed, preserved his issue in his post sentence motion, and included a Pa.R.A.P. 2119(f) statement in his b rief. See Evans , 901 A.2d at 533. Appellant’s Rule 2119(f) statement substantially complies with Goggins . However, we point out that, generally, a challenge to the consecutive nature of a sentence does not raise a substantial question. See Commonwealth v. Dodge , 77 A.3d 1263, 1270 (Pa. Super. 2013) (“To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessiveJ. S17010/15

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sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.” (citation omitted)); Mastromarino , supra . Here, Appellant has rai sed a substantial question to the extent he asserts that his aggregate sentence was contrary to the fundamental norms underlying the sentencing process. See Goggins , supra . Moreover, Appellant argues that while his sentences were within the guidelines, t he consecutive nature of the sentences renders the aggregate term manifestly excessive. Appellant’s Brief at 11 - 12. Accordingly, we examine the merits. Assuming that Appellant has presented a substantial question, after careful review of the record, the parties’ briefs, and the opinion of the Honorable Travis W. Livengood, we affirm on the basis of the trial court’s opinion. See Trial Ct. Op. at 6 - 10 (holding Appellant’s prior record, including armed robbery conviction four years ago, violating supervisi on twice, using firearm to rob during drug deal, and car chase on highway involving police, justified sentence). We therefore affirm the judgment of sentence. See Evans , 901 A.2d at 533 - 34. Judgment of sentence affirmed. Judge Shogan joins the memorandum . President Judge Gantman concurs in the result.
Judgment Entered.J. S17010/15

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Joseph D. Seletyn, Esq. Prothonotary Date: 3/24/2015Circulated 03/16/2015 02:04 PM

. ,.-. ",.,.;,,---**-,,"~"** ... -,. "'IN'" 'C'O" 0' 'C'OMM'ON PLEAS 'OP'BE"D''r.'O''RD';F''OU'· NTY ·PENNSYL' u 7I.NIA "".' ,', ."".,;"._.<
... :.' 'C',' " ,THE.URT" F ' ,.' , .' p."
.. \.oJ"',
. -'
. w:n; " COMMONWEALTH OF PENNSYLVANIA, V. : . BRiAN C. POPE, , DEFENDANT
P**A.R~A.P.1925** OPINION

, I. SUMMARY OF CASE No: 101 FOR 2013 CRIMINAL DIVISION i,'

Defendant was charged 1N-ith Robbery and numerous other offenses from an incident that occurred'on February 17, 2013. We held a jury trial

. on January 27,2014 and the jury convicted Defendant of nearly every

offense in the criminal information.! On March 21, 2014, we sentenced ;,-- Defendant to an aggregate sentence of 19· years to 41 years in a State Prison.

!" - . . .**~** Defendant filed post-sentence Ipotions wruch we denied without a hearing, and Defendant now brings the instant appeal. II. ISSUES II(A). SUFFICIENCY OF THE EVIDENCE

,,,,,**.~ '~::**  1, Defendant was acquitted of two counts of Recklessly Endangering Another Person (counts 9 and 12). The COll1111onwealth withdrew count 7 prior to the jury receiving the case for dellberation. 1
I**~**Circulated 03/16/2015 02:04 PM**.~,** ".- ,..- .. - .' '1 -'-',:" - '"

',." ' suffiCient evidence. The standard 

## for 

# a chaHengetothe sufficiency of the

.**~~** ,. "';'
..... v·.· ... -,"-'**evideiTce'isWenSet1:n~d:** ' •. I ,." "**,'I<""~ ~**  "'- '"

i**~I** ., • [whether] viewing all the evidence at trial, as well as all :xeasonable inferences to**b~ d~':l~~!h~refr()m,**  in the light m,ost ; favorable to the Commonwealth, the jury could have foupd

. that each element of the offense was proven beyond a .,'

### ~ ,

reasonable doubt. Both direct and circumstantial evidence can ,;':be considered equally when assessing the sufficiency of , " evidence." Comtrzonwealth v. Woodruff, 668 A.2d 1158, 1159-60 (Pa.super. 1995).**~.** { , ' .' 1 >-**~** ,,-Defendant was convicted of Robbery, c=riminal Conspiracy, Receiving Stole,: Property, Unlawful Possession of Firearms, Theft by**Unl~wful ;~--**  Taking,' Terroristic Threats and Recklessly Endangering Another Person. At**~-f"** :'
. . . l' ; . ['**~** the**tr:,~al,Pefendant'** s**co-conspira~or, AShI~y**  Nail, testified that**~he** and ,"

-'\':' t,

### Defe~danfarranged to buy marijua!1C1 from Jeremy Lantz, TylerJ3eckett,

. ' --I-,
_ and Mark Scott on February 17, 2013.· Nail testified that she**andDefen~ant** did n?t take money because they agreed to take the marijuana from the
. dealers. Defendant and Nail met the drug dealers at a pre-arranged
I, ' I, " \1 l! location. Nail testified that, after Defendant was handed the ma'rijuana,·

2Circulated 03/16/2015 02:04 PM



### ·'. r ....... '." and Scott; and told them he was taking the rimrijuana> Jeremy 

## Lantz**~"**

"" ' " '"
.... . their vehicle. Defendant then drove 'away with Nail and Lantz in the' ,
'. \

" " i 'vehicle,wifh Beckett and Scott**chasi~g** behind in another vehicle. Nail

. testified that Defendant threw the firearm oufthewindow during this**IT~** , ' ! . chase. Defendant's vehicle was**even~allY'stopped** by Pennsylvania State Troopers after they were contacted bYBeckett.· 1.: 1

'.,
. Mark Scott testified that, after the exchange of the marijuana, Defendant went to the 

### tnink of his**c~,pulled** out a handgun and ordered Becketfand Scott to exit Defendant's 'vehicle. Scotffestified that Defendant f**~.;** .\ : .' pointed the firearm at all three of thelp(Scott, Lantz,Beckett)

### duri~g the'**~t ~**  .' '.
. ,: in'ddent.. Tyler Beckett's**testimonyw~s:'very** similar to' Scott's.' Beckett also , ) testified that he thought Defendant was goingito shoot and kill him when Defendant pointed the gun at him:**::~** Pennsylvania State Trooper JeffiHetzel testified that he interviewed ",:.'
.. Jeremy bantz, who informed him. of**th~location** where Defendant had';,,'
3Circulated 03/16/2015 02:04 PM

;:.,:: ..**~:.':** ,"';
. >thrownthe.l:tandgunJronlthe:vehide,during:.-thechase. 'Trooper HetzeL·c;
.. ;' "

"0' " . traveled,to:the area identified by Lantz, 'and Trooper Hetzel located al1 d

.

DefendantJater admitted to the State Police that the firearm found was the

, .' '.-, one he**us~'d** during the incident.. Trooper Griswold also testified**tha~: '~'**  .

. Defendant· admitted to grabbing a firearrhand telling Beckett he wasn't,
. ',. 'r - ...• paying forl.the marijuana and to .. throwing the firearm from the vehicle.'
. during the'chase. Defendant stipulated at trial that he was disqualif1ed.

;. 1< from**pos~essing** a firearm due to a prior Robbery conviction. Accepting the above recited testimony as true, and affording**al~~**

. favorable inferences tothe Commonwealth, we find that the jury had more 'x**.~** than a sufhci(2nt basis to support its verdicts. Three eye witnesses

### tes~fied -' that Defendant conspired to steal marijuarifr 'with another person and\:that
. he did so a:Lgunpoirtt, endangering three.'other.individuals. 2 We therefore

see no merit to Defendant's argument.

, i..:;-**------i,~--** 2 We do note; however, that the jury acquitted Defendant of one count" of

. Terroristic**~fhreats** and one count 'ofRecklessly Endangering Another Person, specifically regarding Jeremy Lantz as the alleged victim. .1' 4Circulated 03/16/2015 02:04 PM

L ;,

I'·,**~. ~**  '1 , , 'O! I., '_. L.'_' ._. _-h.-',.,,'

" '. •• '. L' _, ,_. • ". '>.**'-~** - I,.' , II('B) WEIG' 'HT OF·THE 'E-V'ID' U'N'C' E;' '.;"""**'.~** "".' , ..... "
.. ,' '. -.'

, . • . . . . . -t.. \. ·D •.. ' " ,j.' 'J < , ••• '.,**I~,_."** "":. ,:,**.~,** '

. 'Defendant also argues that the jury' s v.erdicts are against the weight**',~;,~' ~:0fthe'eyicience~**  The'corl'siderations for a**chctHengt~'t(~rfrre"~weight;of,the** ... evidence is as follows: i .'**"'~** ·,1(Anewtrial should not be granted because of am ere 'confliCtin the testimony or because the judge on the same facts would " ,have arrived at a different conclusiorr;·Ratheri**~th~** role of the ,

, trial judge is to determine that Unotwithstanding all the facts,

certain facts are so clearly of 'greater Iweight that to ignore them or to give them equal weight with all the facts is to deny '. justice.'" It has often been stated that',a new trial should be

. awarded when the jury's verdict is so contrary to the evidence .' as 

### to shock one's sense of justice angthe award ofa new trial is •. imperative so that right may be given another opportunity to

c prevail.'"

I"" .",
.. , 

### Commonwealth v. Clay, 64 A.3d 1049, 105S:(Pa;2013}(dtationsomitted). '

, ,**:::r:'.-~·:.~··'** ...



### ... " . ·'·Defendant's argument is without merit: ,Three**~eyewitrress~S"** . ' " ,. ' implicated -Defendant in the incident and D.efendant:even admitted to,' .'

,I. committing several offenses. 3 Admittedly,tdis.crepancies did exist between the witnesses, which was not unexpected given that all of primary

. 3 Specifically, the Trooper testified that**Def~ridantadmitted** to using the ,,'
.

firearm and telling the drug dealers that he,was taking the marijuana. 5Circulated 03/16/2015 02:04 PM

,,_-"L •. --.t.' _,l.:,.

... ,.... -

__**_~** I

. -.,-' wi tnesseswere ::partitipa ting.in a**illegal~ drug~de'al.4·How.ever,**  : whatever: discrepancies appeared,wer.e minor:ir{seope;and,certainly do not rise to a:. ';

II (C). SENTENCE ii:, , .' Defendant argues that we abuse-d'our·discretiun inimpo'sing,**~~** -.,.-**~** , , . ,_ i·· i'

. --,. -.,.-

. ,sentence. Specifically, Defendant**'argues.that~we-.erredjnimposing** an" aggravated range sentence under the sentencing guidelines. Given , :

Defendanf s argument, we first note that we imposed an aggravated 'range;;'"

. ,sentence only upon counts! and 2, beingthe Robbery and. Conspiracy to ,I:' Commit Robbery charges. s , Since Defendant's statement of matters' .,' complained ofoltappealcomplainonly ofthe.'aggraVated range sentence, ,;.[,'

w:e will focus·our.attention to these two·.caunts.,**~** -;--;;.:- .' 1 '.

1,·-." _. ". .. , ' .. "
4 Indeed, one witness, Jeremy**Lapt~,** relp-sed to**t~stify** at all, and wa?**he~d** -'" in contempt of court and sentenced to one year of incarceration. .'.
S Our sentences liln the remaining offenses were within the standard range ,,', for the Deadly vVeapon Used sentencing guideline matrix. On counts 4, 13 \', and 14, we did ribt impose any sentence,due'to their merger with the< ,'1 " greater offenses.:'"**~,** . 6Circulated 03/16/2015 02:04 PM

_.,' ,.::

### .~ i:

### .:::··:~!v.:'.~:orderedtheBedford County Probation .Office tq>complete'aPre·:'sentence",

I : - ' - to 

### the sentencing hearing, we reviewed the Pre-tSentence Investigation:? . -

, . ,";. i_GiventhatJ3efendant had used a firearmin.the!dffeHSeS}weappliedthe·

. [:"',. .:Deadly Weapon Used sentencing guideline matrix'!, On ,count 1"**W~"** .,i,.",**~. ~**  ;" t'
. _, ,_ ,..:imposeda s.entence of 8 and 1/2 years to 20 years cincarcer·ation. Oncount
.

. ' ':**~ ~**  . " ) ( . i. ,; _ "'.
_ '. , : , 2jwe imposed a sentence oiS and 1/2 years to**~.l** years incarceratioTI/- ,'" .,consecutiveto countl. Aswe'stated on the record at the sentencing hearing, we found an

-**'I'~;,:I** ,.aggravatedxange sentence**tobeappropriate.pdmarilygiveh~bur:"concerns** ;', F.',**\i~'··,** iJorthe protection of the public due to**Defendanes.:repeatedviolent~",;,** ,behaviorinsimilar offenses. Specifically, Defendant was convicted'of, - ,

6We have included the Pre-Sentence Investigatic;minthe record to be

, transmitted for appellate review.
. , , "'" -

.. -'

7 On count I, the guideline range was 78-90 months with the aggravated/ mitigated range of 12 months. On count 2, the gUideline range was 66
.. 78

.J", .' months-with the aggravated / mitigated range, ofGr2m'onths. 'Defendant:did" not object to application of these ranges.' ' :,: ' 7Circulated 03/16/2015 02:04 PM

y ,,'**~,',**

",' .' .. -:**~**

- \':-'

,',' -'- -,' ,'--,\' '-, , ,**~** , , "hearing, we did 

### not sentence-in**the~aggtava:ted ~range'**  simply because "

I ,:**~"** were much more specific to Defendanfs priorcrimina1cQnduct; First,

.. ' Defendant' sconviction: for Armed "Robbery':was relatively recent in time to

theOinstant case, which was indicative to us of a high probabiHty' for.

,...... ·.recidivism. ,Second, [)e£endanbhad violated his supervision on the prior

, Armed Robbery case !two separatetimesi' serving incarceration: On' both.

occasions-highly suggestive that Defendant would riot perform well on parole or probation. h1 addition, while Defendant engaged in highly**~** danger.ous'activity thcit pJ'acedthfe'Erlndtviduals at,risk, Defendantalso'

.' " I. J IT '-.

• " ,l • :**~** ( , .," ,- -,'**~** 1 ,_ '

;:;'/" 8 Such a practice**coulc~ihereversible** error 

### by increasing a sentence for a

. reason that is alreadyfJtikeninto:accourttby.:Defendant's:priorrecord s core

and the corresponding guidelines. '" " 8 . " >

" .

(**f:~**Circulated 03/16/2015 02:04 PM**~:;:.).** . • [, c,:: ,'.**~exacerbated~tlte** danger •. 

### to, theptiblk by::engaging in 

### acatchas(?,a:ftef taking
.. , ;.< . " ",a, person irttohisvehicle·atgunpoint,9
.. ',
. i·-**~** '-'''i' • -', .' },! •• ", -, .'.**"~-,,** .j. : - ;;'.-:":"', "

i, -. Defenclanfs'priorrecord score adequately reflects his criminal record.1 o :, !

.! "'.**'Spedfi()a:U~-Deferidant's** prior record score -does not takednto acc<Duht,i'· I.>. '
.. " '::-:\" ,misdemeanor drug possession in2008,;nor does it reHectthe:total effect a£.: ' , ,**i:.'.~;** :his"conviction of Possession ·withthe Intent to**Delive~,a,eontroned** ' .; ·:Substancein'2010. 11 Finally; while'we,did'impose an**~ggravatedsentence** '.

on the two offenses which we believe. most endangered public safety, we

. 9 While it became apparent during the trial that Jeremy Lantz may have

been a willing participant in the robbery and being seized by Defendant,**~\** . i', ,:.·the otherpatticipants in the incidenLwere'obviously tihawarebf!C1ny>stich" agreement between Defendant and Lantz. Therefore, any conspiracy .betweetrDefendant and Lantz is of little moment to u(s,\,vhere·Defertdant's-'·

actions nonetheless set in motion an inherently dangerous car chase involving a firearm that endangered the public at large.:'
. 10 We calculated Defendant's prior record score as a 5, to which Defendant did not object. .11 To step through the calculation, Defendant's Armed){bbbery counts as a

- .' 4 prior record score, and his Possession with the Intent to Deliver a :':.'. Controlled Substance as a 2 prior record score, for a combined total'of 6. i' !;.,\ .' :Even;withoutDefendant' s misdemeanor drug possessfon conviction"a; :**.,.~: ,·.~priorrgcordscore**  oE5 does. not fullY'account forthe seiiousness·of:··'.· r' •..• ,. Defendant's prior criminal history.' , " 9Circulated 03/16/2015 02:04 PM

;; ;**,';"{~"",,** """ ,,', \.did,.:;--tgi,L)efe1i.dant' S**benefit~im:pose £iV;~;df**  

### the COlthts£ortturtent:!¥, toone, ' ,,'**;"~'another}2',Based** upon or**review:qftheiPre:..:Sentenc~IriVestigationandour**

, ",,', ','Defendant's rehabilitative needs,webelieve"theaggravated sentenc,es

'J', ,ii,,'" ,"": : "imposed were reasonable**underthe'circulns&nces;~** 

### IlL ORDEROE0oumT
... , ,AND : NOW, this 20th:.daybfAugust/2014, theProthonotaty /Clerk of Courts:ofBedford County is:.hereby**ordered:to~ transmit,therecordin~the** 

. above-'captioned matter to the Proth0notaryof the Superior Court of ' , Pennsylvania in accordance with Pa.R.A;P.1931(c)
.

Counsel: . , .... '.,.';

,LIVENGOOD, 

### J.

For the Commonwealth: Williain Higgins, Jr., District Attorney , For the Defendant: Anthony Zanoni, Esquire '

12 Since sentences were only'imposedon :eight 

### cbunts due to: merger, we. '

. ',' therefore imposed concurre:ctt j standardr.ange sentences on**over.~6:0%.·** of the, counts. 10