Com. v. Samad, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MUHAMMAD SAMAD :
:
Appellant : No. 1458 EDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0005802-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 12, 2021
Appellant Muhammad Samad appeals from the amended judgment of
sentence1 imposed after he pled guilty to three counts of possession with
intent to deliver (PWID),2 one count of endangering the welfare of a child, and
one count of carrying a firearm without a license.3 Appellant argues that his
sentence is illegal because (1) the separate sentences for PWID—fentanyl and
PWID—cocaine violated constitutional protections against double jeopardy and
(2) the sentences for PWID—fentanyl and PWID—cocaine should have
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* Retired Senior Judge assigned to the Superior Court.
1 We have corrected the caption to reflect that the appeal properly lies from
the amended judgment of sentence.
2 Specifically, PWID—fentanyl, PWID—cocaine, and PWID—marijuana.
3 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 4304(a)(1), and 6106(a)(1),
respectively.
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merged. Appellant also challenges the discretionary aspects of his sentence.
We affirm.
We state the facts as set forth at Appellant’s guilty plea hearing:
[O]n August 17, 2018, members of the Cheltenham Police
Department and Montgomery County Detective Bureau Narcotics
Enforcement Team served a warrant on [Appellant’s] person,
[Appellant’s] Mercedes Benz[,] and [Appellant’s] home in
Cheltenham, Montgomery County, where [Appellant] live[s] with
[his] wife and [his] two young daughters.
* * *
[Appellant was] stopped leaving the house in [his] Mercedes.
When officers searched the car, they recovered a loaded Glock 26
pistol with a magazine containing 16 rounds, as well as heroin and
marijuana. [Appellant] did not have a valid license to carry the
firearm. The Glock 26 was in [Appellant’s] possession, and
[Appellant] intended to sell the heroin and marijuana in [his] car
...
* * *
Also, when the police went to search [Appellant’s] house, they
found two kilograms of cocaine in [Appellant’s] bedroom,
approximately eight pounds of marijuana, 830 packets of heroin
in the basement, and over 38 grams of Fentanyl in the house.
[Appellant] intended to sell these drugs; . . .
* * *
There were also five firearms or rifles found in the basement.
There was a plate of cocaine with residue in the basement.
And these items in the basement, as well as the drugs that were
in [Appellant’s] unlocked bedroom, were accessible to
[Appellant’s] daughters who were living in the home, and were six
and two years old at the time; . . .
N.T., Plea Hr’g, 2/12/20, at 13-15. Appellant admitted to these factual
allegations as part of his open guilty plea on February 12, 2020. Id. The trial
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court deferred sentencing for the preparation of a pre-sentence investigation
(PSI) report. Id. at 19.
On June 24, 2020, the trial court imposed concurrent terms of
incarceration of seven-and-a-half to fifteen years for PWID—fentanyl (count
one), five to ten years for PWID—cocaine (count two), one to three years for
PWID—marijuana (count three), and one to three years for endangering the
welfare of a child (count thirteen). The trial court also imposed a consecutive
term of five to ten years’ incarceration for carrying a firearm without a license
(count fifteen). Appellant’s aggregate sentence was twelve-and-a-half to
twenty-five years’ incarceration. The trial court did not inform Appellant of
his post-sentence and appellate rights and failed to ascertain on the record if
counsel had informed Appellant of those rights.
On June 26, 2020, the trial court entered an order sua sponte amending
the sentence because of an error in the original sentence and “to maintain the
original sentencing scheme . . . .” Order, 6/26/20.4 The trial court amended
the sentence for count two, i.e., five to ten years’ incarceration, to run
consecutively to count one, instead of concurrently. Also, the trial court
reduced the sentence for count fifteen from five to ten years’ incarceration to
three-and-a-half to seven years and ran it concurrently to count one. The
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4 The order does not specify what this error is, but based on our review of the
record, the original sentence for count fifteen, a felony of the third degree
exceeded the lawful maximum.
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aggregate sentence remained the same. That order did not apprise Appellant
of his post-sentence or appellate rights.
Eleven days later, on July 7, 2020 Appellant filed a motion for
reconsideration of sentence (post-sentence motion). Therein, Appellant
argued that the trial court’s aggregate sentence was above the standard
guideline range and greater than necessary to rehabilitate Appellant and to
deter future wrongdoing. Appellant also claimed that the trial court abused
its discretion by imposing an aggregate sentence above the standard guideline
range when his prior record score was mostly based on an old juvenile
adjudication, and the trial court did not state reasons for imposing an
aggravated sentence. Further, Appellant requested an opportunity to present
additional mitigation evidence, namely character witnesses and evidence
about his learning disability, neither of which were available at sentencing.
The trial court denied Appellant’s post-sentence motion that same day. The
trial court’s order denying Appellant’s post-sentence motion informed
Appellant “[y]ou have the right to appeal this Order to the Superior Court
within thirty (30) days of the date of this Order.” Order, 7/7/20.
Appellant filed a notice of appeal thirty-one days later on August 7,
2020. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial
court filed its 1925(a) opinion stating that Appellant’s appeal was untimely
filed, and also addressed Appellant’s claims on the merits.
On August 21, 2020, this Court issued a rule to show cause why the
appeal should not be quashed as untimely filed. Appellant responded that his
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post-sentence motion was timely filed because it was mailed on July 6, 2020.
Resp. to Rule to Show Cause, 8/23/20, at ¶¶ 3-5. On October 15, 2020, this
Court issued a second rule to show cause why the appeal should not be
quashed as untimely filed. Appellant responded that he electronically filed his
notice of appeal on August 4, 2020, but the clerk of courts rejected it,
informing Appellant he could only submit the notice of appeal by mail and
must include the filing fee. Resp. to Rule to Show Cause, 10/23/20, at ¶¶ 5-
6; Ex. A; Ex. B. Appellant then mailed a physical copy of the notice of appeal
and the filing fee to the trial court on August 5, 2020, and the clerk date-
stamped it on August 7, 2020. Id. at ¶ 7. Appellant contends that the
perfection of an appeal is not dependent on the payment of a filing fee, and
his appeal should be treated as timely filed on August 4, 2020, the date of his
original, rejected filing. Id. at ¶¶ 10-11 (citing First Union Nat. Bank v.
F.A. Realty Inv. Corp., 812 A.2d 719, 722-23 (Pa. Super. 2002)). This Court
discharged the rules to show cause and deferred the issue to the present
panel. Order, 12/4/20.
On appeal, Appellant raises three issues, which we reorder and
summarize as follows:
1. Did the trial court violate the Double Jeopardy Clauses of the
United States and Pennsylvania Constitutions by imposing
separate sentences for PWID—fentanyl and PWID—cocaine?
2. Are Appellant’s separate sentences for PWID—fentanyl and
PWID—cocaine illegal because the charges should have merged
for sentencing purposes?
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3. Did the trial court abuse its discretion in imposing statutory
maximum consecutive sentences for counts 1 and 2, by failing
to account for the age of [Appellant’s] juvenile adjudications
which formed the bulk of the prior record score, and by failing
to give adequate weight to mitigating circumstances?
Appellant’s Brief at 3 (some formatting altered).
Timeliness of Appeal
Before reaching the merits, we must first determine whether we have
jurisdiction over this appeal. See Commonwealth v. Horn, 172 A.3d 1133,
1135 (Pa. Super. 2017) (stating that appellate courts may consider the issue
of jurisdiction sua sponte). “Jurisdiction is vested in the Superior Court upon
the filing of a timely notice of appeal.” Commonwealth v. Green, 862 A.2d
613, 615 (Pa. Super. 2004) (en banc) (citation omitted). “In a criminal case
in which no post-sentence motion has been filed, the notice of appeal shall be
filed within 30 days of the imposition of the judgment of sentence in open
court.” Pa.R.A.P. 903(c)(3). When a trial court amends the sentence, the
appeal lies from the amended judgment of sentence. See Commonwealth
v. Garzone, 993 A.2d 1245, 1254 (Pa. Super. 2010).
“[T]he time for filing an appeal can be extended beyond [thirty] days
after the imposition of sentence only if the defendant files a timely post-
sentence motion.” Green, 862 A.2d at 618; see also Pa.R.Crim.P. 720(A)(2)
(stating a notice of appeal shall be filed within thirty days of the post-sentence
motion being denied or withdrawn). Pa.R.Crim.P. 720(A)(1) requires that
post-sentence motions be filed within ten days of the imposition of sentence.
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It is well-established that untimely post-sentence motions do not toll the thirty
day appeal period. See Green, 862 A.2d at 618.
Generally, an appellate court cannot extend the time for filing an appeal.
See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007).
“Nonetheless, this general rule does not affect the power of the courts to grant
relief in the case of fraud or breakdown in the processes of the court.” Id.“The courts of this Commonwealth have held that a court breakdown occurred
in instances where the trial court . . . either failed to advise Appellant of his
post-sentence and appellate rights or misadvised him.” Id. (citations
omitted).
Here, the trial court did not notify Appellant of his post-sentence or
appellate rights, either on the record at sentencing or in the June 26, 2020
order amending the judgment of sentence that was mailed to Appellant.
Therefore, we conclude a breakdown in the operations of court occurred which
excuses the late filing of Appellant’s post-sentence motion. See Patterson,
940 A.2d at 498-500. Moreover, we conclude despite being docketed on the
thirty-first day after the denial of his post-sentence motion, Appellant timely
filed his appeal.5 Therefore, we now proceed to consider Appellant’s claims.
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5 As noted above, Appellant electronically filed a notice of appeal on August 4,
2020, but the clerk of courts rejected it because Appellant had not paid the
filing fee. See Resp. to Rule to Show Cause, 10/23/20, at ¶¶ 5-6; Ex. A; Ex.
B. This Court has explained, “[a]n appeal filed within the allowed time period
without the requisite fee will still be considered valid.” First Union Nat.
Bank, 812 A.2d at 722-23.
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Double Jeopardy and Merger
Appellant argues that the separate sentences for counts one and two
(PWID—fentanyl and PWID—cocaine, respectively) are illegal for two reasons.
Appellant’s Brief at 15-19. First, Appellant asserts that because these two
offenses arose from the same incident, “the imposition of separate sentences
for each count violates the United States and Pennsylvania Constitution[]s[’]
prohibition[s] against double jeopardy.” Id. at 16. Second, Appellant claims
that that the trial court should have merged his sentences for counts one and
two under 42 Pa.C.S. § 9765. Id. at 18-19.
Appellant contends that because his PWID—fentanyl and PWID—cocaine
convictions arose from the same criminal episode and consist of the same
elements, counts one and two must be considered the same offense for double
jeopardy and merger purposes. Id. at 15-19. Specifically, Appellant argues
that his convictions “arose from the same criminal episode, namely, the search
of defendant’s vehicle and home on August 17, 2018.” Id. at 18. Appellant
also claims that the elements of counts one and two are identical because the
particular drug possessed or delivered is not an element of the offense of
PWID. Id. at 15-19 (citing, inter alia, Commonwealth v. Ramsey, 214 A.3d
274, 278 (Pa. Super 2019)). Appellant further argues contends that Ramsey
overruled sub silentio our decision in Commonwealth v. Roberts, 133 A.3d
759 (Pa. Super. 2016). Id. at 16-17. Therefore, Appellant concludes that the
trial court erred in relying on Roberts in its Rule 1925(a) opinion. Id. at 16.
Lastly, Appellant claims that Commonwealth v. Swavely, 554 A.2d 946 (Pa.
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Super. 1989), is not applicable to this case because the defendant in Swavely
was convicted of two counts of PWID, one for a Schedule II controlled
substance and the other for a Schedule IV controlled substance, while this
case involves fentanyl and cocaine, which are both Schedule II controlled
substances. Id. at 17.
The Commonwealth responds that Appellant’s separate sentences for
counts one and two do not violate the constitutional prohibitions against
double jeopardy because the charges at counts one and two are for different
drugs. Commonwealth’s Brief at 25-30 (citing Swavely, 554 A.2d at 949,
951, 953). Likewise, the Commonwealth argues that counts one and two do
not merge because each count requires proof of an element not included in
the other, namely the particular drug possessed. Id. at 36-37. The
Commonwealth further argues that counts one and two do not merge because
these counts “did not arise from a single criminal act and the statutory
elements of one are not included in the statutory elements of the other.” Id.
at 31. The Commonwealth asserts Appellant’s convictions arose from multiple
criminal acts because Appellant possessed multiple kinds of drugs, possessed
them in different locations inside his home and his car, and intended to make
multiple sales at different times. Id. at 34-35.
The Commonwealth argues Ramsey is distinguishable from the facts of
this case because the defendant in Ramsey sold “a compound which could
not be separated into its component parts” and the defendant pleaded guilty
to one count of PWID and one count of delivery a controlled substance. Id.
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at 33-34, 36. According to the Commonwealth, the Ramsey Court applied
existing precedent that PWID was a lesser-included offense of delivery of a
controlled substance. Id. at 34 (citing Ramsey, 214 A.3d at 279). The
Commonwealth further contends that Appellant’s interpretation of Ramsey is
incorrect, and that Ramsey, Roberts, and Swavely all “make it clear that
the particular drug delivered is, in fact, an element of the offense [of PWID].”
Id. at 36.
Whether convictions merge for sentencing purposes involves the legality
of a sentence. See Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa.
2009). A double jeopardy claim also “implicates the legality of Appellant’s
sentence[.]” Commonwealth v. Crissman, 195 A.3d 588, 590-91 (Pa.
Super. 2018). Our Supreme Court has explained that “[t]he test for
sentencing merger is the same test utilized to decide whether more than one
offense has been committed in the double jeopardy context.”
Commonwealth v. Davidson, 938 A.2d 198, 218 (Pa. 2007) (citations
omitted). Our standard of review is de novo and our scope of review is
plenary.6 See Baldwin, 985 A.2d at 833; Crissman, 195 A.3d at 591.
Our Supreme Court has explained that Section 9765 of the Sentencing
Code “prohibits merger unless two distinct facts are present: 1) the crimes
arise from a single criminal act; and 2) all of the statutory elements of one of
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6 We note that Appellant raised his double jeopardy and merger claims for the
first time in his Rule 1925(b) statement. However, because these claims
implicate the legality of the sentence, they cannot be waived. See
Commonwealth v. Olson, 179 A.3d 1134, 1137 (Pa. Super. 2018).
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the offenses are included in the statutory elements of the other.” Baldwin,
985 A.2d at 833 (citing 42 Pa.C.S. § 9765). “Where crimes merge for
sentencing purposes, the court may sentence the defendant only on the higher
graded offense.” 42 Pa.C.S. § 9765.
To determine whether there is a single criminal act, we must examine
the crimes as charged by the Commonwealth. Commonwealth v. Jenkins,
96 A.3d 1055, 1060 (Pa. Super. 2014). If the offenses arise from a single
criminal act, a merger analysis must then consider whether “all of the
statutory elements of one of the offenses are included in the statutory
elements of the other.” Baldwin, 985 A.2d at 833 (citing 42 Pa.C.S. § 9765).
Our Supreme Court has explained that
we cannot ignore the simple legislative reality that individual
criminal statutes often overlap, and proscribe in the alternative
several different categories of conduct under a single banner.
See, e.g., aggravated assault, 18 Pa.C.S. § 2702 (defining seven
distinct violations of law); involuntary deviate sexual intercourse,
18 Pa.C.S. § 3123 (setting forth eight separate violations).
Consequently, in such cases, we caution that trial courts must
take care to determine which particular “offenses,” i.e. violations
of law, are at issue in a particular case. See, e.g.,
Commonwealth v. Johnson, 874 A.2d 66, 71 n.2 (Pa. Super.
2005) (recognizing that a particular subsection of a criminal
statute may merge with another crime as a lesser-included
offense even though a different subsection of that same statute
may not).
Id. at 837 n.6 (some formatting altered).
The Controlled Substance, Drug, Device and Cosmetic Act defines PWID
as follows:
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Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30); see also Commonwealth v. Dix, 207 A.3d 383,
390 (Pa. Super. 2019) (stating the elements of PWID are that “the defendant
knowingly or intentionally possessed a controlled substance without being
properly registered to do so, with the intent to . . . deliver it.” (citations
omitted)), appeal denied, 217 A.3d 790 (Pa. 2019).
In Swavely, this Court examined whether separate sentences for two
counts of PWID, one for a Schedule II controlled substance and the other for
a Schedule IV controlled substance, violated constitutional protections against
double jeopardy and the merger doctrine. Swavely, 554 A.2d at 947. The
offenses arose from a single sale of the two drugs packaged in a single plastic
vial. Id. The Swavely Court explained that because “[e]ach offense includes
an element distinctive of the other, i.e. the particular controlled substance. .
. . two separate offenses occurred, and sentencing on both offenses did not
violate the Double Jeopardy Clause. . . .” Id. at 949. This Court also found
that the two PWID sentences did not merge, explaining that
the two separate offenses committed did not necessarily
involve one another. Though contained in the same vial when
transferred, neither offense required the existence of the other
drug for its completion. Either offense could readily have been
completed without the other. That [the defendant] chose to
complete both crimes in one transfer does not render one crime
necessarily included in the other.
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Id. at 952 (emphasis in original).
In Roberts, the defendant was convicted of two counts of PWID, one
for powder cocaine and the other for crack cocaine. Roberts, 133 A.3d at
763. The trial court imposed separate sentences for the two counts of PWID.
Id. at 767. On appeal, defendant argued that the trial court imposed an illegal
sentence because the two PWID convictions should have merged for
sentencing purposes. Id. at 773. The Roberts Court discussed the elements
portion of Section 9765’s merger test in terms of greater and lesser included
offenses. Id. (citing Commonwealth v. Williams, 958 A.2d 522, 527 (Pa.
Super. 2008); 42 Pa.C.S. § 9765). This Court affirmed the judgment of
sentence, concluding that the two PWID counts did not merge because neither
was a greater or lesser included offense of the other. Id. at 773-74.
More recently, in Ramsey, this Court examined whether separate
sentences for PWID and delivery of a controlled substance violated
constitutional protections against double jeopardy and whether the two counts
should merge for sentencing purposes. Ramsey, 214 A.3d at 276-79. In
that case, the defendant sold “a compound mixture containing detectable
amounts of heroin and fentanyl[]” to an undercover police officer. Id. at 276.
The Ramsey Court distinguished Swavely, and held that the separate
sentences for PWID and delivery of a controlled substance that stemmed from
a “single sale of a compound substance containing inseparable controlled
substances[]” violated the defendant’s protection against double jeopardy.
Id. at 278. Lastly, this Court held that PWID and delivery of a controlled
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substance merged for sentencing purposes. Id. at 279 (citing
Commonwealth v. Eicher, 605 A.2d 337, 353 (Pa. Super. 1992);
Commonwealth v. Edwards, 449 A.2d 38, 39 (Pa. Super. 1982)).
Here the trial court held that
merger analysis is not appropriate when the offense charged in a
case stem from different criminal acts. Commonwealth v.
Healey, 836 A.2d 156, 158-15[9] (Pa. Super. 2003). In the
context of possession with intent to deliver charges, the
Pennsylvania Superior Court has found that the possession of
different substances, do not constitute a greater and lesser
included offenses to merge for sentencing purposes.
Commonwealth v. Roberts, 133 A.3d 759, 773 (Pa. Super.
2016).
In this case, Appellant was convicted at Count 1 [] for the
possession with intent to deliver—fentanyl and he was convicted
at Count 2 for the possession with intent to deliver—cocaine.
Therefore, C[]ounts 1 and 2 would not merge because fentanyl
and cocaine are different drugs found in different locations in
Appellant’s home. See, Affidavit of Probable Cause. Therefore,
these convictions do not merge at sentencing and the sentence
imposed is proper.
Trial Ct. Op., 9/23/20, at 15.
We find no error in the trial court’s analysis. Specifically, we conclude
that Roberts is controlling and that the separate sentences for PWID—
fentanyl and PWID—cocaine do not merge for sentencing purposes and do not
violate the prohibition against double jeopardy. As in Roberts, even
assuming that the instant offenses arose from the same criminal act, one
count is not a greater or lesser offense of the other. See Roberts, 133 A.3d
at 773-74; see also Swavely, 554 A.2d at 949-52. We also conclude that
Appellant’s reliance on Ramsey merits no relief. Ramsey involved a single
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sale of a single compound and inseparable mixture of two controlled
substances, whereas this case involves two different controlled substances,
which were not mixed together. Compare Ramsey, 214 A.3d at 276, 278
with N.T., Plea Hr’g, 2/12/20, at 13-14; and Trial Ct. Op. at 15. Given these
differences, the holding of Ramsey is not applicable to the facts of this case.7
See Commonwealth v. Kane, 210 A.3d 324, 332 (Pa. Super. 2019), appeal
denied, 218 A.3d 856 (Pa. 2019) (reiterating “the holding of a judicial decision
is to be read against its facts” (citation and quotation marks omitted)).
Therefore, Appellant is not entitled to relief on his double jeopardy and
merger claims. See Baldwin, 985 A.2d at 833.
Discretionary Aspects of Sentencing
Appellant also challenges the discretionary aspects of his sentence.
Appellant’s Brief at 12-14. Appellant argues that the trial court abused its
discretion by focusing solely on the seriousness of the offense and completely
ignored the substantial mitigation evidence presented at sentencing. Id. at
13-14. Appellant further contends that the trial court abused its discretion by
imposing consecutive sentences on count one and count two. Id. Appellant
further notes that his prior record score was five, and the bulk of his prior
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7 Additionally, even if Ramsey and Roberts were indistinguishable, we reject
Appellant’s contention that Ramsey implicitly overruled Roberts. It is well-
established that one three judge panel of this Court may not overrule a prior,
precedential decision another three judge panel. See Commonwealth v.
Beck, 78 A.3d 656, 659 (Pa. Super. 2013). A three-judge panel of this Court
decided Ramsey, therefore it could not have overruled the three judge panel
in Roberts. See id.- 15 -
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record score resulted from a nineteen-year-old juvenile adjudication for
aggravated assault.8 Id. at 12.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits
of such claims, we must determine:
(1) whether the appeal is timely; (2) whether [the a]ppellant
preserved his issues; (3) whether [the a]ppellant’s brief includes
a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is inappropriate under the [S]entencing [C]ode.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal”).
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8 In his concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of sentence, Appellant elaborates
that the trial court abused its discretion in that it failed to give any weight to
the age of defendant’s juvenile adjudications, particularly a nineteen-year-old
adjudication for aggravated assault. Appellant’s Brief at 10.
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Here, in his post-sentence motion, Appellant argued that the aggregate
sentence was above the standard guideline range and greater than necessary
to rehabilitate Appellant and to deter future wrongdoing. See Appellant’s
Post-Sentence Mot., 7/7/20, at ¶ 7. Appellant also contended that the trial
court erred in imposing an aggregate sentence above the standard guideline
range when his prior record score was mostly based on an old juvenile
adjudication. See Appellant’s Post-Sentence Mot., 7/7/20, at ¶ 8. Appellant,
however, did not raise his claims that the trial court erred by focusing solely
on the seriousness of the offenses, ignoring mitigation evidence, and running
the sentences for count one and two consecutively. See id. at ¶¶ 1-8.
Based on our review of the record, we conclude that Appellant has
waived his claims that the trial court abused its discretion by focusing solely
on the seriousness of the offense, ignoring mitigation evidence, and imposing
consecutive sentences by failing to preserve them at sentencing or in his post-
sentence motion. See Malovich, 903 A.2d at 1251; see also Pa.R.A.P.
302(a).
As for Appellant’s claim that the trial court erred with respect to the
weight it gave to his prior record score, that claim was preserved in his post-
sentence motion, his 1925(b) statement, and in his brief’s concise statement
of the reasons relied upon for allowance of appeal. See Corley, 31 A.3d at
296. However, we hold that this claim does not present a substantial question
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for our review.9 See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa.
2007) (noting that the sentencing guidelines “are merely one factor among
many that the court must consider in imposing a sentence” (citation
omitted)); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014)
(stating that “a claim that a court did not weigh the [sentencing] factors as
an appellant wishes does not raise a substantial question” (citations omitted)).
For these reasons, we conclude that Appellant has failed to preserve or
raise a substantial question warranting further review. Accordingly,
Appellant’s challenges to the discretionary aspects of his sentence fail.10
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2021
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9 We note that a claim that the trial court miscalculated a defendant’s prior
record score raises a substantial question that the sentence is inappropriate.
See Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).
However, Appellant only challenges the weight the trial court gave to the prior
record score, and does not argue that the trial court erred in including
Appellant’s juvenile adjudications in the calculation of the prior record score.
See Appellant’s Brief at 10-11.
10Even if we were to review the merits of the issues preserved in Appellant’s
post-sentence motion, we would, ultimately, find them meritless.
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