J-S68041-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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MISTY KING,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 509 WDA 2016

Appeal from the Judgment of Sentence March 15, 2016

in the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0001201-2015

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 18, 2016

Misty King (Appellant) appeals from the judgment of sentence entered 

after she was convicted of receiving stolen property. We affirm.

The incident giving rise to this case occurred at 

approximately 4:00 a.m. on June 22, 2015 in North Union Twp., 

Fayette County, Pennsylvania. Pennsylvania State Police were 

dispatched to J.C.’s Pool Hall for a reported robbery. Two men, 

Matthew Marquis and Shane Shipley, were transported by 

[Appellant] to the establishment. Mr. Shipley, while outfitted in 

a Spiderman mask, pretended to brandish a firearm and 

demanded the two cash register drawers and the $1,672 in cash 

and coins therein. After taking possession of the items, the men 

were transported back to [Appellant’s] residence where the 

police eventually caught up with them and found the register 

drawers in an outside dumpster. [Appellant] attempted to flee 

and then concealed herself before being apprehended by the 

police.

[Appellant] was charged with conspiracy to commit 

robbery and receiving stolen property. On March 8, 2016, 

[Appellant] was convicted by a jury of receiving stolen property, 

and on March 16, 2016, [Appellant] was sentenced to seventeen 
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(17) months to three (3) years in prison, followed by a two-year 

consecutive term of probation. ...

* * *

On March 21, 2016, [Appellant] filed a timely postsentence motion challenging the severity of her sentence. On 

March 28, 2016, the [trial c]ourt denied the motion.... This 

timely appeal followed. 

Trial Court Opinion, 6/3/2016, at 2-3 (citations, footnote, and unnecessary 

capitalization omitted). Both Appellant and the trial court have complied 

with Pa.R.A.P. 1925.

Appellant presents this Court with two questions: (1) “Did the 

sentencing court impose a harsh, severe, and manifestly unreasonable and 

excessive sentence in light of the circumstances surrounding the alleged 

incident?” and (2) “Did the sentencing court fail to articulate a reasonable 

basis for sentencing Appellant in the aggravate[d] range of the Pennsylvania 

sentencing guidelines?” Appellant’s Brief at 7 (unnecessary capitalization 

omitted).

Appellant challenges the discretionary aspects of her sentence. We 

consider her questions mindful of the following.

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.
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* * *

When imposing sentence, a court is required to consider 

the particular circumstances of the offense and the character of 

the defendant. In considering these factors, the court should 

refer to the defendant’s prior criminal record, age, personal 

characteristics and potential for rehabilitation. 

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014) 

(internal citations and quotation marks omitted). 

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the 

following four factors: 

(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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted). 

Here, Appellant filed a notice of appeal after preserving the issue by 

filing a motion to modify sentence. Although Appellant’s brief does not 

contain a statement pursuant to Pa.R.A.P. 2119(f), that failure does not 

preclude review because the Commonwealth has not objected. 

Commonwealth v. Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (citing 
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Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998) (en banc) 

(“If an appellant fails to comply with R.A.P. 2119(f) and appellee fails to 

object, this Court may review appellant’s claims with regard to the 

discretionary aspects of sentence.”)). We thus consider whether Appellant 

has presented a substantial question for our review.

Appellant’s first claim, that the sentence is excessive for the crime at 

issue and is in fact punishment “for crimes of which she was acquitted,” 

Appellant’s Brief at 11, raises a substantial question. Commonwealth v. 

Downing, 990 A.2d 788, 792 (Pa. Super. 2010) (holding substantial 

question raised by claim that sentence was based upon an improper factor). 

Similarly, Appellant’s claim that the trial court failed to state on the record 

adequate reasons for imposing an aggravated-range sentence raises a 

substantial question. Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. 

Super. 2008). Accordingly, we shall address the merits of Appellant’s 

claims, which together amount to the argument that the trial court did not 

state on the record valid reasons for sentencing her as it did.

The parties agreed that Appellant had a prior record score of four, and 

was convicted of a first degree misdemeanor with an offense gravity score of 

three.1 N.T., 3/15/2016, at 3. Accordingly, the sentencing guidelines 

provided for a standard range sentence with a minimum of three to 14 

 

1 The statutory maximum sentence is five years of imprisonment. 18 

Pa.C.S. § 1104(1). 
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months of incarceration and an aggravated range sentence with a minimum 

of 14 to 17 months of incarceration. Id. 

After review of the presentence investigation report, the trial court 

opted for a sentence of 17 to 36 months of incarceration followed by two 

years of probation. On the record at Appellant’s sentencing hearing, the trial 

court offered the following reasons for its decision.

We have reviewed the letter from Stella Caccia, [Appellant’s] 

aunt. We can only say that it is a familiar refrain that I hear that 

this person is a great person as long as they are not on drugs, 

basically is what I take from the letter, and unfortunately too 

many people are taking that first step into drugs and can’t come 

back. It is like, evidently for a lot of people, like going over a 

cliff. And unfortunately, in addition to this offense, she has got a 

recent conviction for felony burglary. ...

* * *

We are certainly disturbed by the fact that [Appellant] was 

convicted as recently as 2012 of burglary. It may be that she 

was revoked on, she was revoked on March 2, 2015. I am not 

sure why she was revoked. As there clearly was more to the 

sentence than we have got summarized because with a six 

month sentence on October 15, of [20]12, there wouldn’t have 

been any legal way to revoke her on March 2 of 2015, and that’s 

what we have. But it indicates that she was in jail for at least 

ten days and released with a drug and alcohol evaluation in 

March, and this offense occurs in June, only three months later. 

So we are certainly concerned about that. I might also note that 

having presided over the trial, the credible testimony was that, 

although she was not convicted of conspiracy, she did in fact go 

into J.C.’s, according to the testimony, ordered food, [left] 

without picking up the order, and was the driver of the car that 

brought Shipley and I believe it is Matthews, to J.C.’s for a 

robbery, to all of their benefit[. W]hile Mr. Shipley pretended 

that he had a handgun, there is no evidence that he actually had 

a handgun. No handgun was recovered and everyone has been 

fully consistent in saying that he was holding his finger or 
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another object under a sweatshirt. So this was a bluff. That 

said, it still could have been dangerous to somebody had the 

proprietor been armed, they might have shot Mr. Matthews or 

Mr. Shipley. It was a [r]obbery. She was not convicted of it. 

But certainly a preponderance of the evidence shows that her 

involvement is more than having received the stolen property. 

For all those reasons, we intend to sentence in the aggravated 

range....

Id. at 5-9.

We note that the trial court reviewed the presentence investigation 

report, and, thus, “we presume that the court properly considered and 

weighed all relevant factors in fashioning [Appellant’s] sentence.” 

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). Further, 

the record reveals that the trial court was cognizant of the aggravated 

nature of the sentence it was imposing, and offered reasons for it: (1) past 

leniency had failed to dissuade Appellant from engaging in criminal conduct 

shortly after being released from imprisonment, and (2) Appellant certainly 

did not merely sit back and receive the property that the conspirators stole; 

rather, she was present at the scene and thereby helped create a potentially 

dangerous condition. 

Appellant contends that the latter reason constitutes consideration of 

charges of which she was acquitted, which “would ‘erode the integrity of our 

criminal justice system.’” Appellant’s Brief at 12 (quoting Commonwealth 

v. Smart, 564 A.2d 512, 515 (Pa. Super. 1989)). We disagree.
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In Smart, the defendant was acquitted of robbery, rape, and 

involuntary deviate sexual intercourse, but was convicted of burglary. The 

sentencing guidelines provided for a standard range of 12 to 29 months of 

imprisonment, with 29 to 36 months being the aggravated range. The 

presentence investigation report contained a recommendation of 30 to 60 

months. The trial court imposed a sentence of 96 to 240 months of 

imprisonment “thus representing a minimum sentence of two and a half 

times the outside of the guideline sentence in the aggravated range.” Id. at 

513. The trial court’s reasons for the sentence were that the burglarized 

building was a home for abused women and that Smart as a teenager had 

knocked a five-year-old off of a bike and stolen it. 

This Court rejected the trial court’s reasons, stating that “burglary is, 

at least considering its common law roots, a crime against a dwelling, not a 

crime against an individual, and it would seem rather immaterial who 

occupies the dwelling,” and that although the bike incident “is not to be 

condoned and is most definitely anti-social, ... imprisonment for such 

behavior could lead to the incarceration of many a neighborhood bully.” Id.

at 514. This Court also took issue with the fact that “the trial court 

apparently gave little credit to [Smart] for withdrawing from the criminal 

venture and the evidence that he was intoxicated at the time of the 

incident.” Id. This Court went on to state:
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We are further concerned because the facts of the present case 

create a strong suggestion that appellant is being punished for 

crimes of which he was acquitted. We note the trial court’s 

insistence that he was sentenced only for the burglary charge. 

Yet it is entirely possible that the charges appellant was 

acquitted of, along with those charges pending disposition, were 

working subconsciously to make the trial court take a particularly 

hardened stance on sentencing. When these factors are put 

completely out of mind, the sentence imposed makes little sense 

and seems very harsh when considered relative to the 

guidelines. However, were one to consider, in a hypothetical 

sense, that appellant had been convicted for all of the crimes 

charged, the sentence might be considered appropriate. Thus, 

regardless of the actual influence the acquittal had upon the trial 

court, the situation has, at the minimum, an appearance of a 

make-up type of sentence. Similar to the area of law regarding 

judicial bias, which compels against even the appearance of 

partiality, bias or interest, we believe sentences imposed under 

the present circumstances must be closely scrutinized to prevent 

not only the appearance that an individual is being sentenced, in 

reality, for crimes the jury rendered an acquittal verdict, but also 

to protect against a possible subconsciously influenced sentence. 

To allow even an appearance of such a practice would erode the 

integrity of our criminal justice system.

Id. at 514–15. Under these circumstances, this Court held that the trial 

court’s sentence was an abuse of discretion.2

 

2 The dissent in Smart would have affirmed on the basis that “there is 

testimony of record that supports the judge’s determination regarding the 

nature of the crime and the character of appellant in the instant case. Thus, 

there is an explanation for the harshness of the sentence other than the 

judge’s attempt to override the jury verdicts.” Smart, 564 A.2d at 518 

(Beck, J., dissenting). Our Supreme Court granted allowance of appeal of 

this Court’s split decision, 578 A.2d 928 (Pa. 1990), but subsequently 

dismissed it as improvidently granted, 592 A.2d 683 (Pa. 1991). Justice 

Larsen, joined by Justice McDermott, dissented to the dismissal, stating that 

the “Superior Court exceeded its scope of appellate review by substituting its 

view that the appellee should receive a sentence much more lenient than the 

lawful one imposed by the trial court. This was clearly an abusive 

usurpation of the sentencing power of the sentencing judge and should not 
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The instant case is clearly distinguishable from Smart. First, the 

reasons offered by the trial court for its sentence are valid, unlike the 

tenuous reasons cited by the Smart majority. Second, we discern no 

appearance of the subconscious influence of the acquittal verdict on the 

sentence herein. The trial court in this case noted that, although her 

involvement may not have risen to the level of a member of the robbery 

conspiracy, Appellant did act beyond just having stolen property appear at 

her residence. For that reason and the others stated, it sentenced her in the 

aggravated range for the charge of which she was convicted; it did not, as 

the court in Smart did, hand down a sentence more than twice that of one

in the aggravated range, resulting in a sentence appropriate for someone 

who had been convicted on all pending charges rather than just the actual 

single conviction.3 

For the foregoing reasons, we conclude that Appellant has failed to 

demonstrate that “the sentencing court ignored or misapplied the law, 

 

be allowed.” Id. at 686. We have not uncovered any subsequent appellate 

decision that has relied upon this Court’s holding in Smart. 

3 The presentence investigation report is not part of the record before us. 

From review of the sentencing guidelines, it appears that, if convicted on the 

F1 conspiracy-to-commit-robbery count (which has an offense gravity score 

of 8) with her prior record score of 4, the standard range sentence would 

have been 21 to 27 months and the aggravated range 27 to 36 months. In 

other words, if Appellant was convicted on both counts, the trial court could 

have sentenced her to an aggregate sentence more than twice as long as 

the 17-to-36-month sentence that was imposed and still have been within 

the standard range.
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exercised its judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.” Commonwealth v. 

Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quoting Commonwealth 

v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016