Com. v. Mansurov, O.

• Court: Superior Court of Pennsylvania
• Decided: May 1, 2018
• Docket: 2117 EDA 2016
• Status: Unpublished

Opinion

J-S11045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OZOD MANSUROV, : : Appellant : No. 2117 EDA 2016

Appeal from the Judgment of Sentence May 10, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008729-2015

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 01, 2018

Ozod Mansurov (“Mansurov”) appeals from the judgment of sentence

imposed after a jury convicted him of criminal trespass.1 We affirm.

In its Opinion, the trial court adeptly detailed the relevant factual and

procedural history, which we incorporate as though fully set forth herein. See

Trial Court Opinion, 7/14/17, at 1-6.2

In this timely appeal, Mansurov presents the following issues for our

review:

____________________________________________

1See 18 Pa.C.S.A. § 3503(a)(1) (providing, in relevant part, that “[a] person commits an offense if, knowing that he is not licensed or privileged to do so, he … breaks into any building or occupied structure or separately secured or occupied portion thereof.”). 2 After the trial court sentenced Mansurov, he filed a timely post-sentence Motion challenging, inter alia, the weight and sufficiency of the evidence supporting his conviction, and the discretionary aspects of his sentence. The trial court denied this Motion by an Order entered on June 3, 2016. J-S11045-18

1. Whether the evidence was insufficient as a matter [of] law to find … Mansurov guilty of 18 Pa.C.S.A. § 3503, criminal trespass of a building and/or occupied structure[,] as the evidence failed to establish Mansurov was not privileged to enter the complainant’s apartment[?] Likewise, the evidence was insufficient to prove he gained entry to complainant’s home “by force, breaking, intimidation, unauthorized opening of locks or through an opening not designed for human access.”

2. Whether the jury’s finding of guilt[] on the charge of criminal trespass was against the great weight of the evidence presented at trial[,] as the testimony of the complainant was simply not credible and should not have been accepted by the jury[?] The Complainant did not testify that she told Mansurov to leave.

3. Whether the trial court erred in granting the Commonwealth of Pennsylvania’s Motion to Admit … Mansurov’s prior bad acts[,] pursuant to Pennsylvania Rule of Evidence 404(b)[,] involving an incident in Montgomery County[,] as it was prejudicial and was sought to show [Mansurov’s] propensity to commit the acts alleged in the case before this Court[?]

4. Whether the trial court erred in granting a “stay away order” as to three [] individuals and against [] Mansurov[,] as the court was without the legal authority to do so and the court issued stay away order(s) for individuals who had no real relationship to the action[?] This part of the sentence imposed by the court was illegal.

5. Whether the trial court abused its discretion in sentencing [Mansurov] well outside the Pennsylvania Sentencing guidelines[,] and giving him a sentence of three (3) to six (6) years, when the guideline calculation was []restorative sanctions to nine (9) months[,] plus or minus three (3) months[,] on the singular charge of criminal trespass[,] and [the court] failed to articulate the reason for [] sentencing well outside of the guidelines[,] which was excessive[,] and there was no rational basis for the sentences as well as being unreasonable[?]

Brief for Appellant at 12-13.

-2- J-S11045-18

In his first issue, Mansurov argues that the Commonwealth failed to

present sufficient evidence for the jury to properly find that all of the elements

of criminal trespass were met beyond a reasonable doubt. See id. at 20-22.

Mansurov asserts as follows:

The Commonwealth was required to show that [Mansurov] knew he was not licensed or privileged to go into the apartment of complainant[, i.e., Olena [M]orenska (hereinafter, the “complainant”)]. The evidence was insufficient to establish [that] Mansurov was not privileged to enter the complainant’s apartment. Likewise, the evidence was insufficient to prove he gained entry to [c]omplainant’s home “by force, breaking, intimidation, unauthorized opening of locks or through an opening not designed for human access.”

Id. at 21-22 (quoting 18 Pa.C.S.A. § 3503(a)(3) (setting forth the statutory

definition of “breaks into”)); see also Brief for Appellant at 22 (asserting that

“[i]t was never communicated to Mansurov that he was not permitted to enter

the apartment[,] as his girlfriend[, whom Mansurov had suspected was in the

complainant’s residence at the time of his forced entry,] would stay there and

[Mansurov] had been there before to see her.”).

We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

The standard we apply … is whether[,] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that[,] as a matter of law[,] no probability of fact may be drawn from the combined

-3- J-S11045-18

circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

In its Opinion, the trial court concisely addressed Mansurov’s issue, set

forth the applicable law, and determined that the evidence was sufficient for

the jury to find that the Commonwealth had proved all elements of criminal

trespass beyond a reasonable doubt. See Trial Court Opinion, 7/14/17, at 8-

9. As we agree with the trial court’s rationale and determination, which is

supported by the record, we affirm on this basis concerning Mansurov’s

sufficiency challenge. See id.

In his next issue, Mansurov contends that the trial court abused its

discretion in denying his post-sentence Motion for a new trial, where the jury’s

verdict of guilty on the criminal trespass charge was against the weight of the

evidence and shocks one’s sense of justice. See Brief for Appellant at 22-23.

According to Mansurov, “[t]he testimony of the complainant was simply not

credible and should not have been accepted by the jury.” Id. at 22. Mansurov

further argues that “[t]he [c]omplainant did not testify that she told Mansurov

to leave[,]” and she “did not see Mansurov enter the apartment, [and] did not

see him damage the apartment[.]” Id. Finally, Mansurov points out that the

-4- J-S11045-18

defense “presented a witness[, namely, Inobat Ramazonova

(“Ramazonova”),] who stated [that] the [complainant’s] apartment door

sustained no noticeable damage. Further, [an additional defense witness,

Nukmanzhan Khalilov (“Khalilov”),] testified [that Mansurov] had a key to the

apartment[,] which would have allowed [Mansurov] to lawfully enter the

apartment.” Id. at 22-23;3 see also N.T., 3/11/16, at 28-38.

Our standard of review of a weight of the evidence claim is as follows:

The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

On appeal, our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court’s exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.

3 Mansurov fails to cite the place in the record containing the testimony he references, nor does he even identify these two witnesses by name. See Pa.R.A.P. 2119(c) (stating that “[i]f reference is made to … any [] matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears[.]”). We caution Mansurov that it is not the responsibility of this court to “scour the record to find evidence to support an argument.” Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en banc). -5- J-S11045-18

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)

(quotation marks and citations omitted); see also Commonwealth v.

Rabold, 920 A.2d 857, 860 (Pa. Super. 2007) (stating that “[o]ne of the least

assailable reasons for granting or denying a new trial is the lower court’s

conviction that the verdict was or was not against the weight of the evidence.”)

(citation omitted).

Initially, concerning Mansurov’s assertion that the jury should not have

credited the testimony of the complainant and weighed it in the fashion it did,

this Court may not reassess the credibility of the witnesses and reweigh the

evidence presented at trial, which was within the sole purview of the jury.

See Gonzalez, supra.

Moreover, concerning the testimony of Ramazonova and Khalilov, the

trial court noted in its Opinion as follows:

Although [Mansurov] proffered a witness[, Ramazonova,] who stated that the apartment door sustained no noticeable damage, it was unclear whether [Ramazonova] fully understood the questions that were asked during either direct or cross examination. [Concerning the testimony of Khalilov, a]lthough [Khalilov] initially stated that he had observed [Mansurov] entering the unit with a key on several occasions, cross- examination and redirect examination revealed that [Khalilov] was referring to [Mansurov’s] key to the front door of the multi- unit apartment building. Given the fact that [Mansurov’s] family also lived in the building, this was not probative of [Mansurov’s] rightful access to [the complainant’s] apartment.

Trial Court Opinion, 7/14/17, at 10-11. Our review discloses that the trial

court’s foregoing rationale is supported by the record, and we discern no

abuse of its discretion. Accordingly, none of Mansurov’s contentions under his

-6- J-S11045-18

weight challenge entitle him to relief, and the jury’s verdict does not shock

our collective conscience. Mansurov’s second issue thus fails.

In his third issue, Mansurov asserts that the trial court abused its

discretion in granting the Commonwealth’s Motion in limine, which sought to

introduce at trial evidence of Mansurov’s prior bad acts (namely, his prior

conviction for breaking into another ex-girlfriend’s residence in August 2014

– hereinafter, “the prior bad act evidence”). See Brief for Appellant at 23-30.

According to Mansurov, the prior bad act evidence was irrelevant to the instant

charges, unduly prejudicial, and improperly introduced to prove that he had a

bad character and propensity to commit crimes. Id. at 28, 30. Mansurov

contends that, contrary to the Commonwealth’s assertion in its Motion in

limine, the prior bad act evidence was not relevant to establish motive, intent

or absence of mistake. Id. at 26-28. Mansurov protests that “[h]ere, the

Commonwealth has done nothing more than identify the similarities between

the prior conviction and the charges” filed in the instant case. Id. at 29; see

also id. at 28 (asserting that any similarities were “tenuous”).

When reviewing an order granting a motion in limine, we apply an

evidentiary abuse of discretion standard of review. Commonwealth v.

Stokes, 78 A.3d 644, 654 (Pa. Super. 2013). “The admissibility of evidence

is a matter directed to the sound discretion of the trial court, and an appellate

court may reverse only upon a showing that the trial court abused that

discretion.” Id. (citation omitted).

-7- J-S11045-18

“Relevance is the threshold for admissibility of evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc);

see also Pa.R.E. 402. “Evidence is relevant if it has any tendency to make a

fact more or less probable than it would be without the evidence[,] and the

fact is of consequence in determining the action.” Pa.R.E. 401. However,

“[t]he court may exclude relevant evidence if its probative value is outweighed

by the danger of … unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403.

Pennsylvania Rule of Evidence 404(b)(1) provides that “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.” Pa.R.E. 404(b)(1).

However,

“evidence of prior bad acts, while generally not admissible to prove bad character or criminal propensity, is admissible when proffered for some other relevant purpose so long as the probative value outweighs the prejudicial effect.” [Commonwealth v.] Boczkowski, 846 A.2d [75,] 88 [(Pa. 2014)]. See also [Commonwealth v.] Arrington, 86 A.3d [831,] 842 [(Pa. 2014)], citing Pa.R.E. 404(b)(1); Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715, 720 (Pa. 1981) (law does not allow use of evidence which tends solely to prove accused has “criminal disposition”). Such evidence may be admitted to show motive, identity, lack of accident or common plan or scheme. Arrington, 86 A.3d at 842, citing Pa.R.E. 404(b)(2); Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 337 (Pa. 2011) (Rule 404(b)(2) permits other acts evidence to prove motive, lack of accident, common plan or scheme and identity). In order for other crimes evidence to be admissible, its probative value must outweigh its potential for unfair prejudice against the defendant, Pa.R.E. 404(b)(2), and a comparison of the crimes proffered must

-8- J-S11045-18

show a logical connection between them and the crime currently charged. Arrington, 86 A.3d at 842.

Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017).

Moreover, evidence of prior bad acts/crimes may also be “admitted to

show a defendant’s actions were not the result of a mistake or accident, where

the manner and circumstances of two crimes are remarkably similar.” Tyson,

119 A.3d at 359 (citation and quotation marks omitted); see also

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (holding that

evidence of defendant’s prior physical assaults of his child was admissible to

show absence of mistake or accident in prosecution for intentional beating

death of the child).

In its Opinion, the trial court addressed Mansurov’s claim and

determined that the court did not err in admitting the prior bad act evidence,

as (1) its probative value substantially outweighed any potential for prejudice;

and (2) it was admitted to establish Mansurov’s lack of mistake, not his

propensity to commit crimes. See Trial Court Opinion, 7/14/17, at 12-13.

We agree with the trial court’s reasoning and determination, and therefore

affirm with regard to this issue based on the trial court’s Opinion. See id.

In his fourth issue, Mansurov argues that the trial court erred and

imposed an illegal sentence insofar as it imposed a “stay away Order” in

connection with the sentence. See Brief for Appellant at 30-33. Mansurov

urges that “the trial court was initially without authority to order the stay away

-9- J-S11045-18

from any of the [three] individuals [at issue4], but more importantly[,] … [the

court] ordered Mansurov to stay away, not only from the complainant in this

case, but to also two [] other individuals who were not complainants, not

victims and had only a tangential relationship to the case itself.” Id. at 31

(footnote added, emphasis omitted). According to Mansurov, the trial court

lacked jurisdiction to impose the stay away order, “to the extent that … [such]

order may be construed as a condition of parole[.]” Id. at 32; see also id.

at 33 n.4 (stating that “[a]t sentencing, the trial court indicated that it would

issue ‘stay away orders.’ It [did] not state the stay away orders are a

condition of probation.” (citing N.T., 5/10/16, at 4) (emphasis added)).5

“The determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Atanasio, 997 A.2d 1181,

1183 (Pa. Super. 2010) (citation and brackets omitted)). “If no statutory

authorization exists for a particular sentence, that sentence is illegal and

4The individuals were the complainant and two of Mansurov’s ex-girlfriends, Luiza Ramazanova (“Ramazanova”) and Magdalena Zielinska (“Zielinska”).

5 In support of his claim, Mansurov cites the decision of this Court in Commonwealth v. Mears, 972 A.2d 1210 (Pa. Super. 2009), wherein the panel held that “the Pennsylvania Board of Probation and Parole has exclusive authority to determine parole when the offender is sentenced to a maximum term of imprisonment of two or more years[.] Therefore, any condition the sentencing court purported to impose on Appellant’s state parole is advisory only.” Id. at 1212 (emphasis added, citation and quotation marks omitted). - 10 - J-S11045-18

subject to correction.” Commonwealth v. Hughes, 986 A.2d 159, 160 (Pa.

Super. 2009) (citation omitted).

Moreover, the Sentencing Code provides that, as a condition of

probation, a trial court may require a defendant to “satisfy any [] conditions

reasonably related to the rehabilitation of the defendant and not unduly

restrictive of his liberty ….” 42 Pa.C.S.A. § 9754(c)(13); see also

Commonwealth v. McBride, 433 A.2d 509, 510 (Pa. Super. 1981) (citing to

subsection 9754(c)(13) and explaining that an offender placed on probation

“does not enjoy the full panoply of constitutional rights otherwise enjoyed by

those who have not run afoul of the law.”) (citation and brackets omitted);

Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007) (stating

that probation is rehabilitative in design, protecting the interests of the public

as well as the defendant).

Initially, there is no merit to Mansurov’s claim that the trial court lacked

jurisdiction to impose the stay-away Order. Mansurov refers to the trial

judge’s remark made in imposing sentence that “when [Mansurov] comes out

on parole, he will need a stay away order.” Brief for Appellant at 33 n.4

(emphasis added by Mansurov) (purporting to quote the transcript from the

- 11 - J-S11045-18

sentencing hearing, N.T., 5/10/16, at 49).6 However, regardless of this

purported passing remark, the written sentencing Order, which states that the

court imposed the stay-away condition as part of Mansurov’s probation,

controls. See Commonwealth v. Borrin, 80 A.3d 1219, 1226-27 (Pa. 2013)

(stating that “[i]n Pennsylvania, the text of the sentencing order, and not the

statements a trial court makes about a defendant’s sentence, is determinative

of the court’s sentencing intentions and the sentence imposed.”).

Additionally, the stay-away condition of Mansurov’s probation was not

unduly restrictive, and was designed to rehabilitate him. In imposing the stay-

away Order, the trial court was mindful of Mansurov’s pattern of stalking and

invading the personal space of women, which included his two ex-girlfriends

(i.e., Ramazanova and Zielinska) who were covered under the stay-away

Order. Accordingly, the stay-away Order was reasonable, and specifically

tailored to (a) facilitate Mansurov’s recovery and rehabilitation; and (b)

provide for the safety of the public by preventing him from further harassing

the subject women. See, e.g., McBride, 433 A.2d at 510-11 (upholding the

trial court’s order that the defendant have no contact with the juvenile victim

whose morals he was convicted of corrupting, where it was reasonable and

6 The transcript from the sentencing hearing is not contained in the electronic record certified to this Court. See Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011) (explaining that it is the responsibility of the appellant, not the trial court, to provide a complete record for review, including any necessary transcripts). Moreover, though Mansurov purports to have included a copy of this transcript in his reproduced record, it is not contained therein. - 12 - J-S11045-18

necessary to rehabilitate the defendant). Accordingly, Mansurov’s fourth issue

does not entitle him to relief.

In his final issue, Mansurov contends that the trial court abused its

discretion by imposing a manifestly excessive and unreasonable sentence.

See Brief for Appellant at 33-42. According to Mansurov, the trial court, in

imposing a sentence that is above the applicable sentencing guidelines, failed

to (a) consider Mansurov’s circumstances and rehabilitative needs; and (b)

state on the record reasons for the sentence imposed. See id. at 34-35.

Mansurov challenges the discretionary aspects of his sentence, from

which there is no absolute right to appeal. See Commonwealth v. Hill, 66

A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has

preserved the sentencing challenge for appellate review by raising it at

sentencing or in a timely post-sentence motion, the appellant must (1) include

in his brief a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of a sentence, pursuant to

Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code. Hill, 66

A.3d at 363-64.

Here, Mansurov included a Rule 2119(f) Statement in his brief. See

Brief for Appellant at 33-35. Moreover, his above-mentioned claims present

a substantial question for our review. See Commonwealth v. Macias, 968

A.2d 773, 776 (Pa. Super. 2009) (observing that “[t]he failure to set forth

adequate reasons for the sentence imposed has been held to raise a

- 13 - J-S11045-18

substantial question. Likewise, an averment that the court … failed to consider

all relevant factors raises a substantial question.”) (citations omitted);

Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. Super. 2008) (stating that

“[a] claim that the sentencing court imposed a sentence outside of the

guidelines without specifying sufficient reasons presents a substantial

question for our review.”).

Mansurov challenges as manifestly excessive the court’s sentence of

three to six years in prison, where the guideline range was restorative

sanctions to nine months. See Brief for Appellant at 37. But see also id.

(pointing out that the statutory maximum for a conviction of criminal trespass

is five to ten years in prison). Additionally, Mansurov maintains that “[d]uring

the [sentencing] hearing, the court failed to cite a single reason for its

sentence[.]” Id. at 39; see also id. at 42. Finally, Mansurov argues that the

sentencing court failed to take into account his particular circumstances,

character, and rehabilitative needs. Id. at 37.

We review discretionary aspects of sentence claims under the following

standard: “[S]entencing 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.” Commonwealth v. Fullin, 892 A.2d 843, 847

(Pa. Super. 2006). Moreover, the sentencing court has broad discretion in

choosing the range of permissible confinement that best suits a particular

defendant and the circumstances surrounding his crime. Commonwealth v.

Walls, 846 A.2d 152, 154-55 (Pa. Super. 2004).

- 14 - J-S11045-18

The Sentencing Code sets forth the considerations a trial court must

take into account when formulating a sentence, stating that “the court shall

follow the general principle that the sentence imposed should call for

confinement that is consistent with the protection of the public, the gravity of

the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A.

§ 9721(b). Additionally, in every case where a sentencing court imposes a

sentence outside of the sentencing guidelines, the court must provide in open

court a contemporaneous statement of reasons in support of its sentence. Id.

When doing so,

a trial judge ... [must] demonstrate on the record, as a proper starting point, its awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of 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, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

and brackets omitted). However, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence[.]”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).

Finally, when evaluating a challenge to the discretionary aspects of

sentence, it is important to remember that the sentencing guidelines are

purely advisory in nature. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118

(Pa. 2007); see also Commonwealth v. Walls, 926 A.2d 957, 963 (Pa.

- 15 - J-S11045-18

2007) (stating that “rather than cabin the exercise of a sentencing court’s

discretion, the [sentencing] guidelines merely inform the sentencing

decision.”).

Mansurov’s claim that the sentencing court did not state any reasons for

the sentence it imposed is belied by the record. In its Opinion, the trial court

explains that, at sentencing, it stated, inter alia, as follows prior to sentencing

Mansurov:

I’ll certainly put on the record the history of [Mansurov] and the … the testimony of the officers[, and] the testimony of [Mansurov’s] past domestic violence incidents that were presented are an aggravating factor. I think the nature of this case, the Prior Bad Acts that the [c]ourt admitted into evidence, and witnesses -- I believe two witnesses that testified to Prior Bad Acts, that certainly is a consideration. All of the testimony presented at trial I think make the sentence appropriate. The Prior Bad Acts, the testimony at trial, the testimony we heard today from the officers, as well as [Mansurov’s] juvenile incidents[,] and the other domestic violence incidents presented that show a pattern by [Mansurov] of violating women and physically attacking women and stalking women, has been abundantly shown based on what was presented here today.

Trial Court Opinion, 7/14/17, at 15 (quoting N.T., 5/10/16, at 47). The trial

court further stated in its Opinion as follows: “Based on the findings of the

court, the aggravating factors grossly outweighed any mitigation. A standard

range sentence was not appropriate for the conduct of [Mansurov]. Therefore

the imposition of sentence in this case was proper and was adequately

explained on the record.” Trial Court Opinion, 7/14/17, at 15-16. We agree

with the trial court’s rationale and discern no abuse of its discretion in

imposing a sentence, above the guideline range, which was commensurate

- 16 - J-S11045-18

with the seriousness of the crime, Mansurov’s criminal history, and the danger

he posed to women and the community.

Moreover, the sentencing court had the benefit of a pre-sentence

investigation report (“PSI”). It is well settled that where a sentencing court

is informed by a PSI, “it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.” Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988)). Additionally, “[t]he sentencing judge

can satisfy the requirement that reasons for imposing sentence be placed on

the record by indicating that he or she has been informed by the [PSI]; thus

properly considering and weighing all relevant factors.” Ventura, 975 A.2d

at 1135 (citation omitted).

Because the sentencing court in the instant case had reviewed

Mansurov’s PSI, it is presumed that the court considered, inter alia, his

individualized circumstances and character. See Ventura, supra; see also

Commonwealth v. Sheller, 961 A.2d 187, 191-92 (Pa. Super. 2008)

(stating that the trial court did not abuse its discretion in imposing a sentence

beyond the aggravated range where the court considered the pre-sentence

investigation report, sentencing guidelines, protection of the public, and the

appellant’s rehabilitative needs). Thus, Mansurov’s final issue entitles him to

no relief.

Judgment of sentence affirmed.

- 17 - J-S11045-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/1/18

- 18 - Circulated 04/03/2018 11:31 AM

IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0008729-2015

vs. FILED OZOD MANSUROV JUL 1 4 2017 Records OPINION office of Judicial Trial Appeats/Post NICHOLS, CAROLYN H., J. July 16, 2017

The Defendant, Ozod Mansurov, appeals from the judgement of sentence entered in the

Philadelphia County Court of Common Pleas, following his conviction for Criminal Trespass (18

Pa C.S.A. §3503 §§A1). The relevant facts and procedural history are as follows.

PROCEDURAL HISTORY On May 14, 2015, Defendant was arrested and charged with Burglary (18 § 3502(a)(1)),

Intimidating a Witness (18 § 4952(a)(1)), Criminal Trespass (19 § 3503(a)(1), Theft by Unlawful

Taking (18 § 3921(a)), Receiving Stolen Property (18 § 3925(a)), Terroristic Threats with Intent

to Terrorize Another (18 § 2706(a)(1)), Stalking (18 § 2709.1(a)(1)), and Harassment (18 §

2709(a)(1). See, Bill of Information. Prior to trial, on February 1, 2016, the Commonwealth filed

a motion to introduce prior bad acts of the defendant under Pa.R.E. § 404(b). At the conclusion

of oral argument on February 10, 2016, the motion was granted. On February 16, 2016,

Defendant filed a motion for reconsideration of the court's 404(b) ruling. Defense counsel made CP-51-CR-0008728-2015 Comm v Mansurov, Ozod Opinion

1 1111111,11,11!1916111111111_ oral argument on March 9, 2016, at which point the motion was denied and the matter proceeded

to trial. At the conclusion of the two-day trial on March 11, 2016, the jury found Defendant

guilty of criminal trespass. He was found not guilty on the charges of Burglary and Stalking, but

hung on the remaining charges, which the Commonwealth moved to nolle prosse. At that time,

sentencing was deferred to allow for preparation of a presentence investigation report. On May

10, 2016, Defendant was sentenced to three to six years state incarceration plus a three-year

probationary tail.

Defendant filed a timely Notice of Appeal with the Superior Court of Pennsylvania on

July 5, 2016. This court ordered Defendant to file a 1925(b) on July 12, 2016. After this court

granted Defendant an extension, Defendant timely filed a statement of matters on August 2,

2016.

FINDINGS OF FACT

After finishing work on May 2, 2015, Olena Horenska ("Ms. Horenska") returned to her

apartment at 2101 Winchester Avenue in Philadelphia, Pennsylvania. N.T. 3/10/16 at 24. At that

time, Ms. Horenska lived with two roommates: Fatima and her daughter, Elena. Id. at 20. In

addition, Elena's sister Luiza periodically visited the apartment, staying there when she fought

with Defendant, who was her boyfriend at the time. Id.

After arriving home from work, Ms. Horenska went to her bedroom to take a nap. Id. at

24. Some time later, she awoke to the sound of very loud knocking on the front door. Id. Ms.

Horenska went to the front door, where she heard the voice of Defendant, who she immediately

recognized as Luiza's boyfriend. Id. at 25. She informed Defendant that his girlfriend was not

there, and also explained that because she was alone in the home, she did not want to let him

2 inside. Id. at 25. At that time, the front door was secured with two locks and a chain. Id. at 26.

However, Ms. Holenska soon noticed that door was "very close to open" and was only being

held closed by one chain. Id. Before Defendant could enter the home, Ms. Holenska ran to her

bedroom and closed her door. Id. Shortly thereafter, she heard Defendant going through each

area of the apartment, repeatedly asking where his girlfriend, Luiza, and her mother, Fatima, had

gone. Id. at 28.

Defendant approached the bedroom door and asked Ms. Horenska to open it; she asked

Defendant to promise that he would not hurt her; he obliged. Id, at 27. After opening the door,

Ms. Horenska stepped aside, and Defendant proceeded to check the closet and other areas where

people might potentially hide. Id. Throughout this exchange, he continued to ask Ms. Horenska

questions about when his girlfriend and her mother left and appeared to be "very angry." Id. Ms.

Horenska told Defendant that Luiza and her mother had left the country. Id. at 28. Defendant

asked her if she had called the police; she said that she did not, and offered to show Defendant

her phone so he could verify her claim. Id. He declined, but explained that if she did, she would

"have problems" and that he would kill her. Id.

During this exchange, Defendant was still in Ms. Holenska's bedroom, where the two

were standing only a few feet away. Id. Ms. Holenska testified that she felt very afraid, given that

Defendant "said he's going to kill me, he swears to God." Id. at 29. After finishing their

conversation in the bedroom, Defendant retreated to the living room, where he took two stuffed

animals from the corner and began to leave the apartment. Id. at 30. Ms. Holenska asked who

would fix the door; Defendant replied that it was not his problem, as she should have opened the

door for him. Id.

3 At this point, Ms. Holenska observed that wooden door was crooked and could not be

closed completely. Id. at 31. There were also wooden pieces all over the surrounding area. Id.

Ms. Horenska went to the window overlooking the parking lot at the apartment building; she

observed Defendant getting into his car, then carelessly backing out and loudly accelerating as he

left the area. Id. At this time, Ms. Holenska testified that she sat down to cry before calling to ask

a friend if he could help repair the door, as she was too afraid to call the police. Id. After Ms.

Holenska's friend arrived, they contacted maintenance to ask whether the door could be fixed. Id.

at 32. They were informed that in order for maintenance to repair the door, they would need to

provide them with a police report; at this time, she contacted the police. Id. Following her

statement to police, Ms. Holenska was shown a series of photographs and was asked to make an

identification. Id. at 34. She identified Defendant. Id.

Ms. Holenska and her friend returned to the apartment, where maintenance was able to

- fix the door enough so it would close. Id. Ms. Holenska asked her friend to stay with her at the

apartment, as she did not feel safe there alone. Id. Sometime after midnight, Ms. Holenska heard

knocking on the front door. Id. She went to the bathroom (the room furthest from the front door)

and called 911; her friend went to the front door. Id. Through the bathroom window, Ms.

Holenska heard Defendant's voice in a very angry and loud tone. Id. at 35. At this point,

Defendant left and the police arrived, at which point Ms. Holenska provided the officer with a

statement. Id.

The following day, Ms. Holenska and her friend left the house at roughly 8:30am. Id. at

36. Upon her return later that afternoon, Ms. Holenska observed pieces of the wood door on the

ground. Id. She entered the apartment and tried not to touch anything; she noticed that the glass

4 coffee table was broken, there were small pieces of glass on the floor, there was a broken mirror

hanging on the wall, and the apartment smelled like gas, even though all of the burners were off.

Id. At this point, Ms. Horenska made a third call to the police. Id. at 37. After giving the

responding officer a statement, Ms. 1-Tolenska then packed up her things and left the apartment to

relocate to another state. Id.

At trial, Kaleen Harrigan ("Ms. Harrigan") testified for the Commonwealth regarding an

incident that occurred on August 2, 2014 involving Defendant. Id. at 57. At that time, Ms.

Harrigan was living in the Blair Mill East Apartments in Horsham, Pennsylvania. Id. at 58. Ms.

Harrigan's unit was located on the bottom floor of the building and featured a patio, which was

directly below her upstairs neighbor's balcony. Id.

At some time in the afternoon on the date in question, Ms. Harrigan heard "extremely

loud banging" on the door of a nearby apartment unit. Id, at 59. She then witnessed Defendant

"get boosted up into the top apartment," at which point the glass door on the upstairs unit's

balcony was "ripped open." Id. Ms. Harrigan recognized Defendant as the boyfriend of her

upstairs neighbor, indicating that the two had a "huge fight" about a week prior to the incident.

Id. Ms. Harrigan stated that because it was the middle of the day, she knew her neighbor was not

at home, so she called the police. Id.

Officer Clarence Dickerson ("Officer Dickerson") also testified regarding the August

2014 incident, in which he responded to a call for a burglary while on duty for the Upper

Moreland Township Police Department. Id. at 63. Officer Dickerson knocked on the door of the

unit and stated that he was a police officer, but no ne answered. Id. at 66. At that point, he

5 notified building maintenance of the situation and obtained a key to enter the property. Id. Once

inside, Officer Dickerson discovered Defendant in the shower. Id.

Magdalena Zielinska ("Ms. Zielinska") also testified regarding August 2014 incident. Id.

at 97. On that date, Ms. Zielinska was in a fight with Defendant and refused to answer his calls.

At the time of the incident, Ms. Zielinska was not home, but had received numerous phone calls

from Defendant, which she declined to answer. Id. Although Defendant had spent the night at the

apartment on at least one prior occasion, Ms. Zielinska stated that he never paid rent, nor did he

leave any personal items behind when he left. Id. at 100. She indicated that she did not give

Defendant keys to her apartment, nor did she give him permission to enter her apartment or

retrieve any items. Id. Additionally, she said there was no "normal" way of entering the

apartment other than through the front door; the only possible point of entry was to climb

through the balcony, as her unit at the time was on the second floor. Id.

MATTERS COMPLAINED OF ON APPEAL

1. The evidence was insufficient as a matter of law to find defendant, Ozod Mansurov guilty of 18 Pa. C.S.A. § 3503, criminal trespass of a building and/or occupied structure as the evidence failed to establish Mansurov was not privileged to enter the complainant's apartment. Likewise, the evidence was insufficient to prove he gained entry to complainant's home "by force, breaking, intimidation, unauthorized opening of locks or through an opening not designed for human access."

2. The jury's finding of guilty on the charge of criminal trespass was against the great weight of the evidence presented at trial as the testimony of the complainant was simply not credible and should not have been accepted by the jury. The complainant did not testify that she told Mansurov to leave.

3. The trial court erred in granting the Commonwealth of Pennsylvania's Motion to Admit defendant, Ozod Mansurov's prior bad acts pursuant to Pennsylvania Rule of Evidence 404(b) involving an incident in Montgomery County as it was prejudicial and was sought

6 to show defendant's propensity to commit the acts alleged in the case before this Court.

4. The trial court erred in denying defendant, Ozod Mansurov's Motion for a Mistrial during the course of the trial proceedings. Counsel has requested a copy of the Notes of Testimony from the Trial to Review, however, the trial notes have not been reproduced. Therefore, counsel would request leave of court to amend this 1925(b) Statement upon receipt of the Notes of Testimony with respect to the mistrial issue.

5. The trial court erred in granting a "stay away order" as to three (3) individuals and against Mr. Mansurov as the court was without the legal authority to do s and the court issued stay away order(s) for individuals who had no real relationship to the action. This part of the sentence imposed by the court was illegal.

6. The trial court abused its discretion in sentencing defendant well outside the Pennsylvania Sentencing guidelines and giving him a sentence of three (3) to six (6) years when the guideline calculation was "restorative sanctions to nine (9) months plus or minus three (3) months on the singular charge of criminal trespass and failed to articulate the reason for the sentencing well outside of the guidelines which was excessive and there was no rational basis for the sentences as well as being unreasonable.

7. The trial court erred in allowing two (2) police officers with no connection to the case testify at the time of sentencing on grounds of hearsay and relevance and the erred in allowing a letter to be read by a mother of the complainant which was clearly hearsay and which she was not a victim and which was not a victim impact statement.

DISCUSSION

1. Sufficiency Claim - The evidence presented was sufficient to support the efendant's conviction for criminal trespass.

When evaluating a sufficiency claim, the standard is whether, viewing all evidence and

reasonable inferences in the light most favorable to the Commonwealth, the factfinder

reasonably could have determined each element of the crime was established beyond a

reasonable doubt. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The Superior

Court considers all the evidence admitted, without regard to any claim that some of the evidence

7 was wrongly allowed. Id. The Superior Court will not weigh the evidence or make credibility

determinations. Id. Moreover, any doubts concerning a defendant's guilt were to be resolved by

the fact finder, unless the evidence was so weak and inconclusive that no probability of fact

could be drawn from that evidence. Id.

The Commonwealth may meet its burden by proving a crime's elements with evidence

which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and

the weight to give the evidence produced, is free to believe all, part, or none of the evidence.

Commonwealth v. Riley, 811 A.2d 610, 614 (Pa. Super. 2002), quoting Commonwealth v. Brown,

701 A.2d 252, 254 (Pa. Super. 1997). Ultimately, "the test is whether the evidence, thus viewed,

is sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Whiteman, 485 A.2d

459, 462 (Pa. 1984).

To sustain a conviction for criminal trespass, the Commonwealth must prove that

Defendant entered premises, knowing that he was not licensed or privileged to do so. 18 Pa.C.S.

§3503; See also, Commonwealth v Goldsborough, 426 A.2d 126 (Pa. Super. 1981). It is a

defense to prosecution under this section if "the actor reasonably believed that the owner of the

premises, or other person empowered to license access thereto, would have licensed him to enter

or remain." 18 Pa.C.S.A. §3503(c)(3). However, "in most cases the Commonwealth will meet its

burden of proving that the defendant was not licensed or privileged to enter by having the owner

or occupant of the building testify that he or she did not give the defendant permission to enter."

Commonwealth v Knight, 419 A.2d 492, 500 (Pa. Super. 1980).

In the instant case, Defendant claims that the Commonwealth failed to demonstrate that

(1) he was not privileged to enter the complainant's apartment; and (2) that he gained entry to the

8 home "by force, breaking, intimidation, unauthorized opening of locks or through an opening not

designed for human access." However, for the reasons that follow, these claims are without

merit.

First, it was established at trial that Ms. Horenska explicitly denied Defendant permission

to enter the apartment. Additionally, nothing in the record indicates that Defendant had a

reasonable belief that he was otherwise authorized to enter the apartment, as his only connection

to the unit was through his girlfriend Luiza, who was not a resident. Therefore, it is clear that

Defendant lacked the requisite authorization to enter the apartment unit, which necessarily

invalidates his argument regarding privilege.

Next, Defendant argues that there was insufficient evidence to show that he gained entry

to the home "by force, breaking, intimidation, unauthorized opening of locks or through an

opening not designed for human access." At trial, Ms. Horenska testified that after she denied

Defendant access to the residence, she noticed that the front door locks were close to open. Ms.

Horenska then ran and hid with the Defendant still outside the door and the door secured. During

that time, Defendant grew increasingly frustrated, eventually using some manner of force to

break through the front door (which was locked) and enter Ms. Horenska's home. The mere fact

that Defendant was in the apartment is enough to establish this element, as he was not authorized

to enter the residence.

II. Weight of the Evidence - The Trial Court's verdict was not against the weight of the evidence.

The Defendant also claims that the verdict was against the weight of the evidence, as (1)

the complainant's testimony was not credible; and (2) the complainant did not ask Defendant to

leave. In reviewing a weight claim, the appellate court focuses solely on whether the trial court

9 abused its discretion; it does not consider the underlying question of whether the verdict itself

was against the weight of the evidence. Commonwealth v Widmer, 744 A.2d 745, 751 (Pa.

2000). "Because the trial judge has had the opportunity to hear and see the evidence presented,

an appellate court will give the gravest consideration to the findings and reasons advanced by the

trial judge when reviewing a trial court's determination that the verdict is against the weight of

the evidence." Commonwealth v. Johnson, 910 A.2d, 60 (Pa. 2006).

A weight claim actually concedes sufficiency of the evidence, as the appellate court is to

focus only on quality of the trial court's discretion. Widmer, 744 A.2d at 751. Therefore, "[t]he

test is not whether the court would have decided the case in the same way, but whether the

verdict is so contrary to the evidence as to make the award of a new trial imperative so that right

may be given another opportunity to prevail." Commonwealth v. Whiteman, 485 A.2d 459, 462

(Pa. 1984). Accordingly, in order to reverse a trial court's ruling on a weight of evidence claim, it

"must determine that the verdict is so contrary to the evidence as to 'shock one's sense of

justice.- Commonwealth v. Hitner, 910 A.2d 721, 733 (Pa. Super. 2006).

In the instant case, several witnesses testified for the Commonwealth as to their

observations of the condition of the front door. Although Defendant proffered a witness who

stated that the apartment door sustained no noticeable damage, it was unclear whether the

witness fully understood the questions that were asked during either direct or cross examination.

Although the witness initially stated that he had observed Defendant entering the unit with a key

on several occasions, cross-examination and redirect examination revealed that the witness was

referring to Defendant's key to the front door of the multi -unit apartment building. Given the fact

10 that Defendant's family also lived in the building, this was not probative of Defendant's rightful

access to Ms. Horenska's apartment.

III. The Commonwealth's Motion to Introduce Prior Bad Acts was properly granted, as the evidence was relevant to show Defendant's lack of mistake.

Evidentiary rulings are within the sound discretion of the trial court and should not be

reversed absent a clear abuse of discretion. Commonwealth v. Reefer, 393 Pa. Super. 193, 573

A.2d 1153, 1154 (1990) (citation omitted). The decision whether to admit or exclude evidence

lies within the sound discretion of this Court, which is not subject to reversal except for abuse of

that discretion. Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421, 431 (1994). An abuse of

discretion is not merely an error in judgment but a gross misapplication of the law, manifestly

unreasonable judgment, or demonstrable bias or partiality. Commonwealth v. Kublac, 550 A.2d

219, 223 (1988).

Relevant evidence of other crimes or bad acts committed by the defendant are admissible

as long as they are for a purpose other than propensity to commit crime. Commonwealth v.

Brown, 342 A.2d 84 (Pa. 1972). Under the Pennsylvania Rules of Evidence §404(b)(2),

"evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.

Additionally, if such evidence is found relevant and its uses is for the purpose other than showing

a propensity to commit crime, its probative value must outweigh its potential prejudice. Pa.R.E.

§404(b)(3).

Evidence of other crimes is admissible to show the defendant's actions were not the result

of a mistake or accident "where the manner and circumstance of the two crimes are remarkably

11 similar." Commonwealth v. Tyson, 119 A.3d 353 at 359 (Pa. Super. 2015). In its motion, the

Commonwealth cites to the Tyson case, in which the Superior Court found that the trial court

should have admitted prior act evidence of the defendant committing a rape in the prosecution of

another rape; in so holding, the court noted similarities between the crimes including that the

defendant was acquainted with both victims, who were both black females in their 20s, that he

was a guest in their home, that both victims were in a weakened or compromised state, that both

victims lost consciousness and that both awoke to the defendant having vaginal intercourse with

them Id. at 360.

In the instant case, Defendant argues that the evidence was inadmissible as it was (1)

prejudicial; and (2) was used solely for the purpose of demonstrating propensity. For the reasons

that follow, these points are without merit.

First, Defendant claims that the evidence is prejudicial, which would necessarily render it

inadmissible. However, this is clearly not the case. In ruling on the admissibility of evidence, the

test is not whether it is prejudicial; instead, the test is whether the probative value of the evidence

is substantially outweighed by the danger of unfair prejudice. Here, the court found that the

probative value of the evidence outweighed any prejudicial effect.

Next, Defendant claims that the evidence itself was admitted for the improper purpose of

showing Defendant's propensity. However, the prior bad acts evidence was admitted not to show

propensity, but to establish Defendant's lack of mistake. The accusations by Ms. Harrigan and

Ms. Horenska serve to clearly demonstrate this principle. First, the incidents occurred nine

months apart, with the second taking place only five days after Defendant pled guilty to the

charges in the initial case. Not only were the two incidents close in time, but they were also

12 similar in character. In both instances, Defendant targeted ex -girlfriends who were not at home

when he arrived to break into their respective residences. The ex -girlfriends were both young

females, as were the witnesses to the illegal entries in both cases. Also, in both instances,

Defendant not only forcibly entered the premises, but engaged in varying degrees of evasion

from law enforcement, hiding in the shower in one instance and actually running away from the

scene in the other. Therefore, the admission of the prior acts by Defendant was properly

admitted.

IV. Defendant's claim that the court erred by denying the Motion for a Mistrial is too vague and does not comport with Pa.R.A.P. 1925(B)(4).

Rule I 925(b)(4)(ii) provides, "The Statement shall identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all pertinent issues for the

judge.... Pa.R.A.P. 1925(b)(4)(ii). Rule 1925 is "intended to aid trial judges in identifying and

focusing on those issues which the parties plan to raise on appeal." Commonwealth v. Dowling,

778 A.2d 683, 686 (Pa. Super 2001), (citation omitted). "Rule 1925 is thus a crucial component

of the appellate process." Id.

When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, a trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.

Dowling, 778 A.2d at 686 (internal citations omitted). Commonwealth v. Dowling, 778 A.2d 683

(Pa. Super. 2001). When challenging the sufficiency of the evidence on appeal, the Appellant

must specify which elements of the charge were not proven by a sufficiency of the evidence.

Commonwealth v Gibbs, 2009 PA Super 181, 981 A.2d 274, 281 (2009).

13 In the instant case, the Defendant does not cite with any specificity what aspect of the

evidence presented was insufficient to find him guilty of Intimidation of a Witness. Additionally,

he does not identify which element of the charge was not proven beyond a reasonable doubt with

the evidence presented. Therefore Appellant's claim challenging the sufficiency of the evidence

was not properly preserved and is waived.

The trial court did not commit any error at sentencing.

It is well -settled that challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as a matter of right. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011). Accordingly, before a discretionary challenge can be reviewed by an appellate court, the

defendant must satisfy a four-part test (1) whether the appellant has filed a timely notice of

appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider

and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a

substantial question that the sentence appealed from is not appropriate under the Sentencing

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). In the instant case,

Defendant filed a timely notice of appeal. He also included in his brief a concise statement of

reasons relied upon for allowance of appeal with respect to the discretionary aspects of his

sentence. Therefore, the only issue is whether Defendant has raised a substantial question.

A. The trial court was within its discretion to impose a stay-away order as a term of Defendant's probation.

"The court may impose probation, including 'such reasonable conditions as it deems

necessary to insure or assist the defendant in leading a law-abiding life' including those

conditions 'related to the rehabilitation of the defendant and not unduly restrictive of his liberty

14 or incompatible with his freedom f conscience." 42 Pa.C.S.A. § 9754(b), (c)(13).

Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013). Court imposed conditions, however, cannot

"exceed the maximum term for which the defendant could be confined." 42 Pa.C.S.A. § 9754(a).

In the instant case, Defendant was found guilty of Criminal Trespass, which carries a

minimum guideline sentence of RS -9 +/- 3 and a maximum statutory limit of 10 years.

Accordingly, Defendant was sentenced to 3-6 years state incarceration to run consecutively with

a three-year probationary period, which included the stay -away order as a condition of his

probation. Therefore, even at the maximum, Defendant's aggregate sentence would amount to a

period of up to nine years.

Notwithstanding Defendant's assertion the contrary, the record clearly indicates that the

court articulated the reasons for imposition of the aggravated sentence at sentencing. The court

explained: certainly put on the record the history of the defendant and the -- presented today,

the testimony of the officers the testimony of his past domestic violence incidents that were

presented are an aggravating factor. I think the nature of this case, the Prior Bad Acts that the

Court admitted into evidence, and witnesses -- I believe two witnesses that testified to Prior Bad

Acts, that certainly is a consideration. All of the testimony presented at trial I think make the

sentence appropriate. The Prior Bad Acts, the testimony at trial, the testimony we heard today

from the officers, as well as the juvenile incidents and the other domestic violence incidents

presented that show a pattern by the defendant of violating women and physically attacking

women and stalking women, has been abundantly shown based on what was presented here

today. N.T. 5/10/17 at 47. Based on the findings of the court, the aggravating factors grossly

outweighed any mitigation. A standard range sentence was not appropriate for the conduct of the

15 Defendant in the present case. Therefore the imposition of sentence in this case was proper and

was adequately explained on the record.

B. Admissibility of hearsay evidence at sentencing was proper.

Defendant next challenges the admissibility f hearsay evidence at sentencing. The

admissibility of hearsay evidence at a sentencing hearing is a general and standard practice in the

Commonwealth of Pennsylvania. Cownonwealth Y Medley, 725 A.2d 1225, 1230 (Pa. Super.

1999). Nearly every sentencing proceeding that occurs in the Commonwealth involves hearsay

evidence in the form of a presentence investigation report. The objection by the Defendant is

wholly without merit with regard to the admissibility of hearsay evidence at sentencing.

Therefore the issues raised by the Defendant with regard to the sentencing hearing are

without merit and the sentence of this court should be upheld.

CONCLUSION

For the foregoing reasons, Defendant's appeal should be denied and the judgment f this

court affirmed.

BY THE COURT:

VAROLYN H. NICHOLS, J.