Commonwealth v. Lawhead

13 Pa. D. & C.5th 303
Pennsylvania Court of Common Pleas, Lehigh County·Decided April 21, 2010·No. nos. 3766/2009 and 3770/ 2009·Published

Opinion

DANTOS, J.,

Defendant, Charles Lawhead, has filed an appeal from this court’s order entered on February 24,2010, which denied defendant’s motion for reconsideration of sentence. Accordingly, we are issuing this opinion pursuant to the provisions of Pennsylvania Rule of Appellate Procedure 1925.

The relevant facts are as follows: On December 16, 2009, the defendant entered guilty pleas in case no. 3766/2009 to criminal trespass (18 Pa.C.S §3503(a)(l) (i)), stalking (18 Pa.C.S. §2709.1(a)(1)), and possession of an instrument of crime (18 Pa.C.S. §907(a)). On the same date, the defendant entered a plea of guilty to stalking (18 Pa.C.S. §2709.1(a)(l)) in case no 3770/2009. The negotiated pleas were open pleas. Then, on February 8, 2010, this court sentenced the defendant to a term of imprisonment of not less than nine months nor more than two years on each count in case no. 3766/2009, ordered to run concurrently to each other. Additionally, on February 8, 2010, the defendant was sentenced to a term of state imprisonment of not less than two and a half years [305] not more than five years in case no. 3770/2009. This sentence was imposed concurrently to the sentence ordered in case no. 3766/2009. Then, on or about February 17,2010, the defendant filed a motion for reconsideration of sentence. On or about February 24, 2010, this court denied said motion. Defendant’s appeal followed on March 24, 2010.

The incidents that gave rise to the aforementioned charges in case no 3766/2009 occurred on July 25,2009. (NT. 2/8/10, p. 7.) On this date, at approximately 9 p.m., Officer Bill Williams of the Allentown Police Department observed the defendant walking around the parking lot of a business that was closed located at 1166 North Sherman Street, Allentown. (N.T. 2/8/10, p. 7.) The defendant subsequently told the officer that he was in the area checking on an ex-girlfriend, and checking vehicles to see if she had cheated on him. A check of records revealed that there was a protection from abuse order in effect against the defendant on behalf of the ex-girlfriend, victim Michelle Costanzo. The victim’s residence was located “a stone’s throw away” from this location. (N.T. 2/8/10, p. 7.) During the conversation the defendant told the police that he had burglarized the victim’s residence the previous evening. (N.T. 2/8/10, pp. 12, 19.) He also stated that he entered the garage when the burglar alarm was activated and he fled the scene. (N.T. 2/8/10, pp. 12, 19.) The defendant’s vehicle was located adjacent to the private lot at 1302 North Sherman Street in Allentown. (N.T. 2/8/10, p. 7.) Inside the car in plain view was a journal documenting the victim’s activities,1 and a pair [306] of Bushnell binoculars. (N.T 2/8/10, p. 7.) The car was impounded. An inventory search of the vehicle revealed a pair of Smith and Wesson handcuffs, and a duffle bag containing rope, flashlights, a black flex cuff, wire cutters, a screwdriver, a can of WD-40 and black pliers. (N.T. 2/8/10, p 7.)

In case no. 3770/2009, on July 9, 2009, Officer Benjamin Iobst of the Allentown Police Department received a call from victim Michelle Costanzo stating that the defendant was following her. She had also seen his vehicle parked outside her home at 1904 East Woodlawn Street, Allentown, the previous day and noted no less than six separate incidents where the defendant followed her in his purple sedan or a white box truck. Further, she had video footage of the defendant approaching the front door of her residence on two separate occasions.

On March 29,2010, this court instructed the defendant to file of record and serve upon this court a concise statement of errors complained of on appeal no later than April 19, 2010, in accordance with Pa.R.A.P. 1925(b). Defendant complied with this order. In her concise statement of errors complained of on appeal, the defendant asserts one allegation of error. Specifically, the defendant contends that this court erred in sentencing the defendant to manifestly excessive sentence. In other words, the defendant is challenging the discretionary aspects of [307] sentencing. Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003).

Initially this court notes that:

“Sentencing is within the sound discretion of the sentencing judge, and that decision will not be disturbed absent an abuse of discretion. Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587, 591 (1992) (enbanc). ‘To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive.’ Commonwealth v. Gaddis, 432 Pa. Super. 523, 639 A.2d 462, 469 (1994). Nevertheless, sentencing guidelines are merely advisory, and the court may, in its discretion, sentence outside the guidelines. When a trial court deviates from the guidelines, it must state its reasons for deviation on the record at the time of sentencing or in a contemporaneous written statement. Commonwealth v. Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994). The court must also consider the guidelines as a starting point and deviate so as to impose a sentence consistent with both the public’s safety needs and the defendant’s rehabilitative needs. Id.” Commonwealth v. Shaffer, 722 A.2d 195, 198-99 (Pa. Super. 1998).

If “the sentencing court proffers reasons indicating that its decision to depart from the guidelines is not unreasonable,” its responsibilities have been fulfilled and the appellate courts will not disturb the sentence. Commonwealth v. Gibson, 716 A.2d 1275, 1277 (Pa. Super. 1998). (emphasis in original)

In the instant case, the defendant’s sentence for each offense was beyond the aggravated range, but within the [308] statutory minimum and the statutory maximum, with each count running concurrently to each other.2 Unquestionably, the sentence imposed did not exceed the statutory limits. Therefore, the defendant’s sentence must be evaluated to determine if it was “manifestly excessive.” To do so, the following considerations must be examined:

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Commonwealth v. Lawhead, 13 Pa. D. & C.5th 303 (Pa. Super. Ct. 2010).

13 Pa. D. & C.5th 303 (Commonwealth v. Lawhead) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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