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[U] Commonwealth v. Fequiere

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GIOVANNI FEQUIERE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of May 14, 2013 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002379-2012

BEFORE: GANTMAN, P.J., OLSON AND PLATT, [*] JJ.

MEMORANDUM

OLSON, J.

Appellant, Giovanni Fequiere, appeals from the judgment of sentence entered on May 14, 2013, as made final by the denial of his post-sentence motion on May 28, 2013. We affirm.

The factual background of this case is as follows. Appellant admitted that on October 7, 2012, at approximately 11:16 p.m., he and his co-conspirators forced their way into Ruby Tuesday's ("the restaurant"). Commonwealth's Exhibit 6. He contended that he had forgotten his bag at the restaurant, where he was employed, and forced his way into the restaurant in order to retrieve his belongings. Id. The evidence presented at trial demonstrated that while in the restaurant, Appellant and his co-conspirators had a discussion about opening the safe. E.g., Commonwealth's Exhibit 10, 1:03-1:45.[1] They discussed removing money from the cash register. Id. at 5:10-5:20. They also discussed mixing their own drinks. Id. at 0:14-0:20. The break-in triggered an alarm, and the security company called the Stroud Area Regional Police Department which arrived on scene and apprehended Appellant. See id. at 10:36.

The trial court accurately summarized the procedural history of this case as follows:

On December 21, 2012, the Commonwealth filed a [c]riminal [i]nformation, charging [Appellant] with one [] count of [b]urglary[2] and one [] count of [c]riminal [t]respass.[3] Also on th[at] day, [Appellant] was formally arraigned. On March 7, 2013, the Commonwealth filed a [m]otion to [a]mend the [c]riminal [i]nformation, seeking to add counts of [c]onspiracy to [c]ommit [c]rimes of [b]urglary and [c]riminal [t]respass.[4] By [o]rder of the same date, th[e trial c]ourt granted the Commonwealth[] leave to file an [a]mended [c]riminal [i]nformation.
Trial in [Appellant]'s case began with the selection of a jury on March 5, 2013. Testimony began on March 11, 2013 and the jury reached their verdict on the same day. [Appellant] was convicted of the following crimes: one [] count of [b]urglary - [n]ot [a]dapted for [o]vernight [a]ccommodation, [n]o [p]erson [p]resent, one [] count of [c]riminal [t]respass - [e]nter [s]tructure[, ] and one [] count of [c]onspiracy to [c]ommit [b]urglary and [c]riminal [t]respass.
On May 14, 201[3], [Appellant] was sentenced to a period of incarceration of not less than nine [] months nor more than 23½ months to be served in the Monroe County Correctional Facility[, which was within the standard range of the sentencing guidelines]. . . .
On May 23, 2013, [Appellant] filed a [m]otion to [r]econsider [s]entence. [Appellant] argued that "the sentence imposed, though less than the recommendation provided by the [p]robation [d]epartment, was nonetheless excessive for a first-time offender who has pursued regular employment." [Appellant] further argued that the sentence was excessive for the following reasons: (1) "the sole aggravating factor was the use of marijuana, which, [although] illegal, nonetheless is historically in widespread use, particularly in certain social, cultural, and age strata"; (2) "the sentence imposed was out of proportion to the harm caused, particularly viewed in [] light of [the] disposition of other offenders and the damage they wrought"; (3) "while the prosecutor made much of the audio used at trial in which the cash register was mentioned . . . she did not realize that the cash registers are emptied every night as part of the closing process of Ruby Tuesday's"; (4) "it was the co-defendant who drank a Corona beer at the scene"; (5) "[Appellant] ha[d] already spent []12[] days in jail at the time of sentencing, has now spent further time in jail, such that the punishment sufficiently impresses upon [Appellant] the nature of his transgression" and (6) "parole supervision from this point on would best satisfy penal needs and the rehabilitative needs of this [Appellant]." By [o]rder dated May 28, 2013, th[e trial c]ourt denied [Appellant]'s [m]otion to [r]econsider [s]entence.
On June 4, 2013, [Appellant] filed a [n]otice of [a]ppeal, appealing to th[is] Court from the [judgment] of [s]entence entered on May 14, 2013. On June 5, 2013, [Appellant] was directed to file a [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal [("concise statement")] within [ ]21[] days of the date of the [o]rder. On June 26, 2012, [Appellant] filed his [c]oncise [s]tatement []. [The trial court issued an o]pinion in accordance with Pa.R.A.P. 1925(a) [on August 16, 2013.]

Trial Court Opinion, 8/16/13, at 1-3 (certain footnotes, internal citations, and ...


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