J-S16004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RONALD GREGORY

Appellant No. 1571 EDA 2014

Appeal from the Judgment of Sentence May 2, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011340-2012

BEFORE: OTT, J., DUBOW, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 09, 2016

Appellant Ronald Gregory appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following his nolo 

contendere plea to rape, involuntary deviate sexual intercourse (“IDSI”), 

robbery, and burglary.1 We affirm.

The trial court set forth the relevant facts of this appeal as follows:

[O]n July 26, 2012, at approximately 11:00 p.m., 

Appellant entered the home of [“Victim”], located at 5306 

Wayne Avenue in Philadelphia. He did not know [Victim] 

nor did he have her permission to be there. [Victim], who 

was 78 years old at the time, was sleeping when Appellant 

entered her bedroom. He penetrated the senior 

complainant vaginally, anally and orally, before ejaculating 

on her face. Appellant then took her fanny pack containing 

U.S. currency and personal items, including photographs, 

____________________________________________

1 18 Pa.C.S. §§ 3121(a)(1), 3123 (a)(1), 3701 (a)(1)(ii), and 3502(a)(1), 

respectively.
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and also took her television. (See N.T., 12/02/13, pp. 9-

10).

In addition to forensic analysis which matched Appellant to 

the semen from [Victim’s] face, as well as positive rape kit 

analysis -- an eyewitness observed Appellant leaving 

[Victim’s] residence carrying a television. (See N.T., 

12/02/13, pp. 10-11).

After comprehensively colloquying Appellant, this [c]ourt 

accepted his nolo contendere plea as knowingly and 

voluntarily entered. 

Trial Court Opinion, filed May 13, 2015 at 2.

On May 2, 2014, the court sentenced Appellant to an aggregate term 

of eighteen (18) to forty-seven (47) years’ incarceration.2 Appellant filed a 

motion for reconsideration of sentence, which the court denied on May 13, 

2014. On May 20, 2014, Appellant timely filed a notice of appeal. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issue for our review:

DID THE COURT COMMIT AN ABUSE OF DISCRETION BY 

SENTENCING APPELLANT TO A TERM OF INCARCERATION 

OF 18 TO 47 YEARS IN PRISON WHEN THE SENTENCING 

GUIDELINES CALLED FOR 60 TO 78 MONTHS[’] 

INCARCERATION?

Appellant’s Brief at 9.

____________________________________________

2 The court imposed consecutive sentences of ten (10) to twenty (20) years’ 

incarceration for rape, five (5) to twenty (20) years’ incarceration for IDSI, 

two (2) to five (5) years’ incarceration for robbery, and one (1) to two (2) 

years’ incarceration for burglary. 
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In his sole issue on appeal, Appellant challenges the discretionary 

aspects of his sentence. Challenges to the discretionary aspects of 

sentencing do not entitle a petitioner to review as of right. Commonwealth 

v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can 

address such a discretionary challenge, an appellant must invoke this Court’s 

jurisdiction by satisfying the following four-part test:

(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.

Id.

Instantly, Appellant preserved his issue in a post-sentence motion,3

filed a timely notice of appeal and included in his brief a concise statement 

of reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See

Appellant’s Brief at 12. Thus, we must determine whether Appellant has 

____________________________________________

3 Appellant’s motion for reconsideration of sentence is not included in the 

certified record, however, the trial court issued the following order: “AND 

NOW, this 13th day of May, 2014, upon consideration of the within motion 

for reconsideration of sentence, said motion is hereby DENIED.” Trial Court 

Order, filed May 13, 2014. Although the “within” motion for reconsideration 

is not attached to the trial court order, the court ruled on it. Under the 

circumstances of this case, we find Appellant preserved his issue for our 

review.
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raised a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 

526, 533 (Pa.Super.2011). Further:

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.

Id. (internal citations omitted). 

Additionally:

In determining whether a substantial question exists, this 

Court does not examine the merits of whether the 

sentence is actually excessive. Rather, we look to whether 

the appellant has forwarded a plausible argument that the 

sentence, when it is within the guideline ranges, is clearly 

unreasonable. Concomitantly, the substantial question 

determination does not require the court to decide the 

merits of whether the sentence is clearly unreasonable.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013), 

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014) 

(internal citations omitted).

Here, Appellant argues the court abused its discretion by imposing his 

sentences consecutively, resulting in a manifestly excessive aggregate 

sentence of 18 to 47 years’ incarceration. He further claims the sentencing 

court failed to consider his rehabilitative needs in fashioning the sentence.
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A court’s exercise of discretion in imposing a sentence concurrently or 

consecutively does not ordinarily raise a substantial question. 

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010), 

appeal denied, 14 A.3d 825 (Pa.2011). Rather, the imposition of 

consecutive rather than concurrent sentences will present 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.” Commonwealth v. Lamonda, 52 A.3d 

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.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 excessive sentence; 

however, a bald claim of excessiveness due to the 

consecutive nature of a sentence will not raise a 

substantial question. 

Dodge, 77 A.3d at 1270 (emphasis in original).

In Dodge, this Court determined an appellant’s claim that the 

sentencing court “disregarded rehabilitation and the nature and 

circumstances of the offense in handing down its sentence” presented a 

substantial question. Dodge, 77 A.3d at 1273. 

This Court has also held that “an 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 
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1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) 

(quoting Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)). 

Based on our review of the foregoing precedents, we conclude that 

Appellant’s challenge to the imposition of his consecutive sentences as 

unduly excessive, together with his claim that the court failed to consider his 

rehabilitative needs upon fashioning its sentence, presents a substantial 

question. Thus, we grant his petition for allowance of appeal and address 

the merits of his claim.

We review Appellant’s sentencing claim under 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. 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.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super.2014) (en 

banc), appeal denied, 104 A.3d 1 (Pa.2014).

Upon sentencing Appellant, the court stated:

The offense here is one of the most egregious that I have 

ever heard. For a 78 year-old woman to endure the type 

of humiliation, the type of violent assault, the type of 

disgraceful behavior, just takes your breath away.

I’m sure, [Appellant], your family is as shocked as all of us 

about the nature of the assault on this victim. A few 

things can be as horrifying as this. This woman, at the 

latter stage of her life, has to endure the memory of this 

assault every single day.
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There are a number of considerations that a judge weighs 

in sentencing. Certainly rehabilitation is one of them, prior 

record, the predicting future criminal activity, the positive 

aspects of the defendant’s life, as well as the punishment 

that is appropriate for the crime involved. As I said 

earlier, starting out the day, I was more towards the 

direction of the assistant district attorney’s 

recommendation because of the nature of the criminal 

behavior here.

Because I am taking into account what I’ve been told by 

the family, as well as [Appellant’s] taking of responsibility 

here, that is not the sentence that he is going to receive 

today. I do not, however, believe, [Appellant], that a 

guideline sentence is appropriate either, not in this case.

I do appreciate, again, that there has been the sparing of 

the trial for the victim. She did not have to come in to 

testify and go through that humiliation in front of a group 

of strangers, and my sentence will reflect mitigation for 

that as well.

N.T., May 2, 2014, at 32-33.

The court did not sentence Appellant to 40 to 80 years’ incarceration 

as the Commonwealth suggested, but imposed an aggregate sentence of 18 

to 47 years’ incarceration for his crimes, so that he could be released from 

prison when his is 43 years old. The court’s imposition of consecutive 

sentences did not result in an unduly harsh sentence, considering Appellant’s 

crimes. Further, the court reviewed the presentence investigation report, 

listened to testimony of several family members and counsel regarding his 

rehabilitative needs, and ordered Appellant to complete his GED and 

undergo anger management. We see no abuse of discretion in the sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2016