J-S76036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DENNIS M. SCHELL,

Appellant No. 1222 WDA 2014

Appeal from the Judgment of Sentence of March 18, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0014569-2011, CP-02-CR-0014570-

2011, CP-02-CR-0014572-2011

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.: FILED JANUARY 13, 2015

Appellant, Dennis M. Schell, appeals from the judgment of sentence 

entered on March 18, 2013, as made final by the denial of Appellant’s postsentence motion on July 23, 2014. We affirm.

On December 13, 2012, Appellant entered an open guilty plea to four 

counts of robbery under 18 Pa.C.S.A. § 3701(a)(1)(ii)1and one count of 

robbery under 18 Pa.C.S.A. § 3701(a)(1)(vi).2 During the guilty plea 

colloquy, the Commonwealth outlined the factual basis for the plea:

____________________________________________

1 Robbery under Section 3701(a)(1)(ii) is defined as follows: “A person is 

guilty of robbery if, in the course of committing a theft, he . . . threatens 

another with or intentionally puts him in fear of immediate serious bodily 

injury.” 18 Pa.C.S.A. § 3701(a)(1)(ii).

2 Robbery under Section 3701(a)(1)(vi) is defined as follows: “A person is 

guilty of robbery if, in the course of committing a theft, he . . . takes or 

(Footnote Continued Next Page)
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At [docket number CP-02-CR-0014570-2011 (hereinafter 

“the 570 case”),] the testimony would have been that . . 

[o]n October 27, 2011[,] at [9:00 a.m., Appellant] entered 

[] the First Commonwealth Bank located at 4900 Liberty 

Avenue [in Pittsburgh]. He approached [M.K.] at the bank 

and told him he had a gun and indicated that he would 

shoot him if he did not give him the money. At this point[,] 

they handed over in the bank $9,551[.00] to [Appellant]. 

He was subsequently identified by [M.K.] – I’m sorry, [by 

M.S.] – positively identified him in a photo array.

At [docket number CP-02-CR-0014569-2011 (hereinafter 

“the 569 case”),] the testimony would have been that on 

October 29[, 2011,] at 11:15 a.m., [Appellant] entered the 

Citizens Bank at 837 Freeport Road in Allegheny County; 

[M.K.] was working the window. He approached him and 

indicated he had a gun and he would use it and he asked for 

the fifties and hundreds. During the robbery[, J.M.] heard 

the demands by [Appellant] and went to push the panic 

button. [Appellant] in turn turned towards [J.M.] and said 

don’t touch that button. He grabbed the money and walked 

out of the bank taking with him $2,977[.00]. He was 

subsequently identified from a photo array by the 

individuals in the bank.

[At docket number CP-02-CR-0014572-2011 (hereinafter 

“the 572 case”), the testimony would have been that, o]n 

October 31, 2011[,] at 11:30 [a.m., Appellant] went back 

to the First Commonwealth Bank at 4900 Liberty Avenue. 

At this point he approached [M.S.], being [the] bank 

manager. He indicated that he should sit down at his desk 

and he told him it was a robbery, he had a gun and I will 

start shooting if you don’t give me the money. [M.S.] then 

went to [Mr. P.,] a bank teller, and told him to give him the 

money. They give him $10,000[.00]. [Appellant] indicated 

(Footnote Continued) _______________________

removes the money of a financial institution without the permission of the 

financial institution by making a demand of an employee of the financial 

institution orally or in writing with the intent to deprive the financial 

institution thereof.” 18 Pa.C.S.A. § 3701(a)(1)(vi).
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that’s not filling the f’ing bag. He at that point obtained 

$58,000[.00] from the bank. He left the bank and he had 

the money in his arms.

The bank security officers who also would identify him along 

with these two tellers and the manager, followed him to a 

residence where he was staying. Police arrived[,] 

surround[ed] the residence[,] and were able to place 

[Appellant] under arrest and to get that $58,000[.00] back.

N.T. Guilty Plea Hearing, 12/13/12, at 5-7.

The trial court accepted Appellant’s guilty plea and deferred 

sentencing, pending Appellant’s pre-sentence report and psychiatric 

evaluation. 

Appellant’s sentencing hearing took place on March 18, 2013. As the 

trial court noted during the sentencing hearing, Appellant’s psychiatric 

evaluation revealed that Appellant suffers from “a number of health issues,” 

including schizophrenia. N.T. Sentencing, 3/18/13, at 2. Further, during the 

hearing, Appellant testified: that he suffers from schizophrenia; that he 

takes “numerous medications” for his mental and physical health problems; 

that, prior to his string of robberies, he was forced to take the drug 

clonazepam; that the clonazepam caused him to “go crazy” and lose 

consciousness; that he was on clonazepam at the time of the robberies; and, 

that, as a result of the clonazepam, he did not remember committing the 

robberies. Id. at 2-6.

The trial court noted Appellant’s mental and physical health problems. 

Nevertheless, at each of the three docket numbers, the trial court sentenced 

Appellant to serve a term of five to ten years in prison, and the trial court 
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ordered that Appellant serve the three sentences consecutively.3, 4 Thus, 

the trial court sentenced Appellant to serve an aggregate term of 15 to 30 

years in prison. 

During the sentencing hearing, the trial court explained the reasons it 

sentenced Appellant to serve an aggregate term of 15 to 30 years in prison:

[Appellant] has poor physical health and poor mental 

health. However, he seems to be able to overcome all of 

this adversity in order to rob banks.[5] 

[Appellant] . . . has had incarceration in the jail, he has had 

halfway houses, he’s had electronic monitoring. And he still 

. . . went out and committed three robberies. He may or 

may not have had a gun, we don’t know. No one saw it. 

But he claimed to have a gun, and he threatened to kill 

these people. 

I mean, I just can’t overlook the behavior of someone who 

in the standard range is looking at 120 months, which is the 

maximum sentence. I mean, it is enough.

. . .

____________________________________________

3 The trial court sentenced Appellant to serve terms of five to ten years in 

prison for three of Appellant’s five robbery convictions. The trial court 

imposed no further penalty for the remaining two robbery convictions. See

Order of Sentence, 3/18/13, at 1. 

4 Appellant acknowledges that each of his sentences were in the standard 

range of our sentencing guidelines. Appellant’s Brief at 12; see also

Guideline Sentence Form, 3/18/13, at 1.

5 During sentencing, the trial court noted that Appellant has ten prior 

convictions, seven of which are for robbery. N.T. Sentencing, 3/18/13, at 5. 

Moreover, Appellant admitted that he has committed “a number of bank 

robberies” in the past. Id. at 6-7.
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[T]here is a huge gap between incarceration and mental 

health. And if I could sentence [Appellant] to a mental 

health facility for 15 years I would be more than happy to 

do it. I[,] however, don’t have that ability.

Now, I do know that the state correctional institution of 

Wymer has a mental health program, and does take state 

prisoners. And I will make a recommendation that’s where 

[Appellant] do his incarceration, after he is classified at 

Camp Hill.

But for the reasons I have already stated, I see [Appellant] 

not rehabilitating himself, for whatever reason.

I mean, you know, clearly if it was – I just have to balance 

what’s going on for the rest of the world against what’s 

going on in [Appellant’s] life. And I am sorry that there is 

no place to put him. I think he does need inpatient mental 

health treatment, but don’t believe he will go or take 

advantage of it.

N.T. Sentencing, 3/18/13, at 9-12.

Following sentencing, Appellant did not file a timely post-sentence 

motion or notice of appeal. 

On September 5, 2013, Appellant filed a pro se “Petition for 

Reconsideration of Sentence” in the lower court. The lower court treated the 

petition as a first petition under Pennsylvania’s Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. The lower court thus appointed 

counsel to represent Appellant. 

On July 10, 2014, counsel filed an amended PCRA petition, claiming 

that Appellant’s plea counsel was ineffective for failing to file a post-sentence 

motion. On July 14, 2014, the PCRA court granted Appellant’s PCRA petition 

and reinstated Appellant’s post-sentence rights nunc pro tunc. 
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Appellant then filed a timely post-sentence motion, claiming that the 

trial court abused its discretion when it ran his three sentences 

consecutively. As Appellant claimed, his aggregate sentence of 15 to 30 

years in prison was manifestly excessive because his “crimes were 

occasioned by his mental illness and negative reactions to prescribed drugs” 

and because “warehousing [Appellant] for 15 [to] 30 years in the state 

prison system will not improve his mental health, and will likely cause it to 

deteriorate further.” Appellant’s Post-Sentence Motion, 7/17/14, at 5. 

The trial court denied Appellant’s post-sentence motion on July 28, 

2014 and Appellant filed a timely notice of appeal. Appellant raises the 

following claim on appeal:

Did the trial court err in denying Appellant’s [post-sentence] 

motion[] since the trial court erred in sentencing Appellant 

since Appellant’s aggregate sentence of 15-30 years’ 

imprisonment was manifestly excessive since Appellant’s 

crimes were occasioned by his mental illness and negative 

reactions to prescribed medications. While each 5-10 year 

sentence for each robbery was not improper, the sentences 

could have been run concurrently, since warehousing 

Appellant for 15-30 years in the state prison system will not 

improve his mental health, and will likely cause it to 

deteriorate further?

Appellant’s Brief at 3.

Appellant challenges the discretionary aspects of his sentence. 

“[S]entencing is a matter vested in the sound discretion of the sentencing 

judge, whose judgment will not be disturbed absent an abuse of discretion.” 

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). 
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Moreover, pursuant to statute, Appellant does not have an automatic right to 

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. 

§ 9781(b). Instead, Appellant must petition this Court for permission to 

appeal the discretionary aspects of his sentence. Id.

As this Court has explained:

[t]o reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 

903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify 

sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

In the case at bar, Appellant satisfied the first three requirements, as 

he filed a timely notice of appeal, properly preserved his discretionary 

challenge in a post-sentence motion, and facially complied with Pennsylvania 

Rule of Appellate Procedure 2119(f). We must now determine whether 

Appellant has presented a “substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11. 

Generally, to raise a substantial question, an appellant must “advance 

a colorable argument that the trial judge’s actions were: (1) inconsistent 

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

fundamental norms which underlie the sentencing process.” 

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993); 
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Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en 

banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining 

whether an appellant has raised a substantial question, we must limit our 

review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726. 

This limitation ensures that our inquiry remains “focus[ed] 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. at 727 

(internal emphasis omitted).

In his Rule 2119(f) statement, Appellant acknowledges that his three 

sentences all fell within the standard range of our sentencing guidelines. 

Appellant’s Brief at 12. However, Appellant claims that his aggregate 

sentence of 15 to 30 years in prison was manifestly excessive because his 

crimes were occasioned by “his mental illness and a negative reaction to 

prescription medication” and because “warehousing [Appellant] in the state 

prison system for 15 [to] 30 years will do nothing to address his mental 

illness or rehabilitative needs.” Id. at 12-13.

In essence, Appellant claims that, even though “the sentencing court 

sentenced [Appellant] within the sentencing guidelines[,] . . . the case 

involves circumstances where the application of the guidelines would be 

clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2); Commonwealth v. 

Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (hereinafter “Dodge IV”) 

(recognizing the distinction between “a bald claim of excessiveness due to 
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the consecutive nature of a sentence” and a claim that the court erred in 

imposing consecutive sentences within the guidelines ranges because “the 

case involves circumstances where the application of the guidelines would be 

clearly unreasonable, resulting in an excessive sentence”). 

Appellant first claims that, at sentencing, the trial court failed to 

adequately consider the possibility that his crimes were occasioned by “his 

mental illness and a negative reaction to prescription medication.” 

Appellant’s Brief at 12-13. According to Appellant, by failing to fully 

appreciate these two mitigating factors, the trial court imposed a manifestly 

excessive aggregate sentence under the circumstances. 

Appellant’s first claim does not raise a substantial question under the 

Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. 

Super. 2003) (“an allegation that the sentencing court did not consider 

certain mitigating factors does not raise a substantial question”); see 

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n 

allegation that the sentencing court ‘failed to consider’ or ‘did not adequately 

consider’ various factors does not raise a substantial question that the 

sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also 

Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a 

claim that the trial court “erred by imposing an aggravated range sentence 

without consideration of mitigating circumstances raises a substantial 
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question”) (emphasis added). Therefore, we may not reach the merits of 

Appellant’s first claim.

Appellant also claims that his aggregate sentence is manifestly 

excessive because “warehousing [Appellant] in the state prison system for 

15 [to] 30 years will do nothing to address his mental illness or rehabilitative 

needs.” Appellant’s Brief at 12-13. As this Court has held, a claim that the 

trial court failed to consider the rehabilitative needs of a defendant does 

raise a substantial question under the Sentencing Code. Dodge IV, 77 A.3d 

at 1273 (“we find that Appellant’s claim that the sentencing court 

disregarded rehabilitation and the nature and circumstances of the offense in 

handing down its [consecutive, standard range] sentence presents a 

substantial question for our review”); see also Commonwealth v. Riggs, 

63 A.3d 780, 786 (Pa. Super. 2013) (a claim that the trial court “failed to 

consider relevant sentencing criteria, including the protection of the public, 

the gravity of the underlying offense and the rehabilitative needs” of the 

defendant raised a substantial question). Therefore, we may reach the 

merits of Appellant’s claim that, at sentencing, the trial court failed to 

consider Appellant’s rehabilitative needs. 

However, Appellant’s claim on appeal immediately fails on its merits, 

as the trial court undoubtedly considered Appellant’s rehabilitative needs 

when it imposed Appellant’s sentence. Certainly, during sentencing, the trial 

court spoke at length regarding Appellant’s need for mental health treatment 
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and rehabilitation, but the trial court reasoned that, for the protection of the 

public, it was required to place Appellant in prison for a significant period of 

time. Nevertheless, the trial court informed Appellant:

I do know that the state correctional institution of Wymer 

has a mental health program, and does take state 

prisoners. And I will make a recommendation that’s where 

[Appellant] do his incarceration, after he is classified at 

Camp Hill.

N.T. Sentencing, 3/18/13, at 11.

From the above, it is apparent that the trial court expressly considered 

Appellant’s rehabilitative needs at sentencing. Appellant’s claim to the 

contrary is factually baseless; thus, the claim fails on its merits.

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2015