Com. v. Andrews, D.

J-S24038-19
2019 PA Super 198COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL ANDREWS :
:
Appellant : No. 1385 EDA 2017
Appeal from the Judgment of Sentence April 13, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007797-2014
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED JUNE 21, 2019
Appellant Daniel Andrews appeals the judgment of sentence entered by
the Court of Common Pleas of Philadelphia County after a jury convicted
Appellant of several violations of the Uniform Firearms Act (VUFA). Appellant
asserts that the trial court erred in denying several of his pre-trial motions
and abused its discretion by imposing a manifestly excessive sentence. After
careful review, we affirm.
On June 19, 2014, Michael Nesmith, Henry Crosby, Laticj McKnight, and
Appellant were all present at Nesmith’s home in Philadelphia. The four
individuals began to smoke “blunt” which contained K-2, a synthetic
marijuana. Thereafter, McKnight went upstairs to get a cigarette and Nesmith
and Crosby began to play video games.
When Appellant asked Nesmith for a cigarette, Nesmith responded that
he did not have one. Appellant got up, walked to the door, turned around,
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* Former Justice specially assigned to the Superior Court.
J-S24038-19
and fired shots at Nesmith and Crosby with a handgun. Despite the fact that
Nesmith had been shot in the right thigh, he was able to go upstairs to tell
McKnight that Appellant had shot him. McKnight and Nesmith came back
downstairs, and found Crosby lying on the ground with a gunshot wound to
the chest. After Crosby and Nesmith were transported to the hospital, medical
personnel were able to remove the bullet from Crosby’s right rib, but did not
remove the bullet in Nesmith’s thigh as surgery carried a high risk.
After the shooting, Appellant fled out of the home and attempted to
escape by jumping on the back of a fire truck. When the firemen confronted
Appellant, he became combative. Appellant was arrested after he was found
wandering in the same neighborhood; authorities also discovered Appellant’s
firearm, which Appellant had discarded on the street. After officers took
Appellant into custody, he confessed to shooting Crosby and Nesmith.
Appellant was charged with two counts of aggravated assault, persons
not to possess a firearm, carrying a firearm without a license, carrying a
firearm in public in Philadelphia, and possession of an instrument of crime
(PIC). Appellant filed multiple pre-trial motions, including a motion to dismiss
pursuant to Pa.R.Crim.P. 600 as well as suppression motions challenging the
validity of the warrant used to search his home and the voluntariness of his
confession to police. The trial court denied all of these pre-trial motions.
At Appellant’s trial, over the Commonwealth’s objection, the defense
presented a defense of involuntary intoxication, claiming Appellant was not
aware he smoked a substance containing K2, which had unintended effects.
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On February 8, 2017, a jury acquitted Appellant of aggravated assault, but
convicted him of persons not to possess a firearm, carrying a firearm without
a license, carrying a firearm in public in Philadelphia, and PIC. Appellant filed
a motion for acquittal for the PIC charge, which the lower court granted.
On April 13, 2017, the trial court sentenced Appellant to five to ten
years’ imprisonment for persons not to possess a firearm, two to five years’
imprisonment for carrying a firearm without a license, and one to five years’
imprisonment for carrying a firearm in public in Philadelphia. As all sentences
were set to run consecutively, Appellant received an aggregate sentence of
eight to twenty years’ imprisonment. Appellant filed a post-sentence motion,
which the lower court denied. Appellant filed a timely notice of appeal.
On May 1, 2017, the trial court ordered Appellant to file a Concise
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)
within twenty-one days of its order, stating “any issue not properly included
in the Statement timely filed and served … shall be deemed waived.” Order,
5/1/17, at 1. Appellant did not file his 1925(b) statement until June 6, 2017.
Appellant raises the following issues for our review:
A. The trial court committed error when it denied the Appellant’s
pre-trial motions which included: motion to dismiss pursuant
to Rule 600, motion to dismiss the search warrant, and motion
to suppress the Appellant’s statement.
B. The sentence received by the appellant was so extreme as to
be an abuse of discretion and warrants a re-sentencing
hearing.
Appellant’s Brief, at 6.
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As an initial matter, we note that Appellant's concise statement of
matters complained of on appeal was untimely filed. However, the record in
this case contains no indication that the trial court served Appellant with its
order requiring a Rule 1925(b) statement. Our Court has stated that “[i]f the
[trial court] docket does not show that notice of the entry of a Rule 1925(b)
order was provided to an appellant, then we will not conclude that the
appellant’s issues have been waived for failure to file a Rule 1925(b)
statement.” In re L.M., 923 A.2d 505, 510 (Pa.Super. 2007). The fact that
the appellant actually received notice of the Rule 1925(b) order is irrelevant
if “the docket does not reflect that notice was sent.” Id. In this case, the
docket does not show the court clerk mailed notice of the Rule 1925(b) order
to Appellant. In addition, the trial court never signed the portion of the order
indicating notice was served on Appellant. Therefore, we will not find waiver
on that basis.
Moreover, even if the trial court had properly served its order upon
Appellant, we would not find Appellant’s issues to be waived by counsel’s
untimely filing of the 1925(b) statement. Our rules of appellate procedure
prescribe: “If an appellant in a criminal case was ordered to file a Statement
and failed to do so, such that the appellate court is convinced that counsel has
been per se ineffective, the appellate court shall remand for the filing of a
Statement nunc pro tunc and for the preparation and filing of an opinion by
the judge.” Pa.R.A.P. 1925(c)(3). In Commonwealth v. Burton, 973 A.2d
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428 (Pa.Super. 2009), this Court discussed the ramifications of counsel’s
failure to file a timely 1925(b) statement:
The complete failure to file the 1925 concise statement is per se
ineffectiveness because it is without reasonable basis designed to
effectuate the client's interest and waives all issues on appeal.
Likewise, the untimely filing is per se ineffectiveness because it is
without reasonable basis designed to effectuate the client's
interest and waives all issues on appeal. Thus[,] untimely filing
of the 1925 concise statement is the equivalent of a complete
failure to file. Both are per se ineffectiveness of counsel from
which appellants are entitled to the same prompt relief.
The view that Rule 1925(c)(3) does not apply to untimely 1925
concise statements would produce paradoxical results. The
attorney who abandons his client by failing to file a 1925 concise
statement would do less of a disservice to the client than the
attorney who files a 1925 concise statement beyond the deadline
for filing.
Id. at 432–33. Herein, the trial court did not comment on the untimely filing
of Appellant's Rule 1925(b) statement and, in fact, it addressed all of the
issues raised therein. Therefore, a remand for the preparation of a trial court
opinion is not necessary.
Appellant first challenges the trial court’s denial of his motion to dismiss
under Rule 600. We are guided by the following standard of review:
[i]n evaluating Rule 600 issues, our standard of review of a trial
court's decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
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The proper scope of review is limited to the evidence on the record
of the Rule 600 evidentiary hearing, and the findings of the trial
court. An appellate court must view the facts in the light most
favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court is
not permitted to ignore the dual purpose behind Rule 600. Rule
600 serves two equally important functions: (1) the protection of
the accused's speedy trial rights, and (2) the protection of society.
In determining whether an accused's right to a speedy trial has
been violated, consideration must be given to society's right to
effective prosecution of criminal cases, both to restrain those
guilty of crime and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed to insulate
the criminally accused from good faith prosecution delayed
through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule 600 must be construed in a manner
consistent with society's right to punish and deter crime. In
considering these matters..., courts must carefully factor into the
ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Leaner, 202 A.3d 749, 765–66 (Pa.Super. 2019)
(citation and brackets omitted).
Our Supreme Court has summarized Rule 600’s requirements:
By the terms of Rule 600, the Commonwealth must bring a
defendant to trial within 365 days from the date upon which a
written criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
However, the Rule 600 run date may be adjusted pursuant to the
computational directives set forth in Subsection (C) of the Rule.
For purposes of the Rule 600 computation, “periods of delay at
any stage of the proceedings caused by the Commonwealth when
the Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence.” Id. 600(C)(1). “Any other periods of delay,”
including those caused by the defendant, “shall be excluded from
the computation.” Id. When considering a Rule 600 motion, the
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court must identify each period of delay and attribute it to the
responsible party, then adjust the 365-day tally to arrive at the
latest date upon which the Commonwealth may try the defendant.
Absent a demonstration of due diligence, establishing that the
Commonwealth has done “everything reasonable within its power
to guarantee that [the] trial begins on time,” Commonwealth v.
Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998), the Commonwealth's
failure to bring the defendant to trial before the expiration of the
Rule 600 time period constitutes grounds for dismissal of the
charges with prejudice. See Pa.R.Crim.P. 600(D)(1).
Commonwealth v. Barbour, ___Pa.___, 189 A.3d 944, 947 (2018).
The comment to Rule 600 provides the following with respect to the
computation of time in which a defendant’s trial must be commenced:
For purposes of determining the time within which trial must be
commenced pursuant to paragraph (A), paragraph (C)(1) makes
it clear that any delay in the commencement of trial that is not
attributable to the Commonwealth when the Commonwealth has
exercised due diligence must be excluded from the computation
of time. Thus, the inquiry for a judge in determining whether there
is a violation of the time periods in paragraph (A) is whether the
delay is caused solely by the Commonwealth when the
Commonwealth has failed to exercise due diligence. If the delay
occurred as the result of circumstances beyond the
Commonwealth's control and despite its due diligence, the time is
excluded. In determining whether the Commonwealth has
exercised due diligence, the courts have explained that due
diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a
showing the Commonwealth has put forth a reasonable effort.
Delay in the time for trial that is attributable to the judiciary may
be excluded from the computation of time. However, when the
delay attributable to the court is so egregious that a constitutional
right has been impaired, the court cannot be excused for
postponing the defendant's trial and the delay will not be
excluded.
Pa.R.Crim.P. 600, cmt. (citations, quotation marks and brackets omitted).
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Appellant argues that the trial court erred in determining that the 285-
day period between May 15, 2015 and February 24, 2016 was excludable
delay.1 Instead, Appellant asserts that the delay period should have been
attributed to Commonwealth as the defense requested a continuance for the
Commonwealth to provide additional discovery, which it had failed to provide.
Our Supreme Court has held:
the mere filing of a pretrial motion by a defendant does not
automatically render him unavailable. Rather, a defendant is only
unavailable for trial if a delay in the commencement of trial is
caused by the filing of the pretrial motion. If a delay is created,
in order to establish that the delay is excludable, the
Commonwealth must demonstrate, by a preponderance of the
evidence, that it exercised due diligence in opposing or responding
to the pretrial motion.
Commonwealth v. Hill, 558 Pa. 238, 254–55, 736 A.2d 578, 587 (1999)
(citations and footnote omitted).2
In a similar case, Commonwealth v. Wallace, 804 A.2d 675, 680
(Pa.Super. 2002), the appellant challenged the trial court’s decision to find
excludable a period of delay that occurred after the trial court granted a
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1 As Appellant does not argue that any other time periods were improperly
ruled as excludable delay, we will limit our discussion to the specific time
period that Appellant finds objectionable.
2The Supreme Court clarified that if a trial court “defers the consideration of
a pretrial motion until trial, the time during which the pretrial motion is
pending is not excludable from the [] calculation.” Hill, 558 Pa. at 254–55,
n.7, 736 A.2d at 587, n.7.
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defense request for additional discovery.3 This Court agreed that the eighty-
four-day period was excludable delay as Appellant’s motion placed an
obligation on the prosecution that required the delay of the trial’s
commencement. This Court found that the prosecution had been duly diligent
in making reasonable efforts to accommodate the defense’s request for
discovery; this Court noted that the prosecution had only been accused of
failing to anticipate discovery, which the defense did not specifically request.
Moreover, the trial court noted that no matter how diligent the Commonwealth
was in providing the discovery to the defense, it could not have accelerated
the next court date, which was set at the next court listing.
Moreover, our courts have recognized that while time attributable to the
normal progression of a case is not “delay” pursuant to Rule 600, periods of
judicial delay may be excluded from Rule 600 calculations. Commonwealth
v. Mills, 640 Pa. 118, 122, 162 A.3d 323, 325 (2017). Our Supreme Court
has indicated that courts of original jurisdiction have discretion “to
differentiate between time necessary to ordinary trial preparation and judicial
delay arising out of the court's own scheduling concerns. Accordingly, where
a trial-ready prosecutor must wait several months due to a court calendar,
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3 In Hill and Wallace, the appellants raised speedy trial claims under the
former Rule 1100. On April 1, 2001, Rule 1100 was amended and renumbered
as Rule 600. “However, because much of the rule's substance remained
consistent throughout the amendment, this Court has continued to apply our
precedents interpreting former Rule 1100 to the analogous provisions of Rule
600, sometimes employing Rule 600 nomenclature to facilitate discussion of
Rule 1100 precedents.” Barbour, ___Pa.___, 189 A.3d at 946.
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the time should be treated as ‘delay’ for which the Commonwealth is not
accountable.” Id. See also Commonwealth v. Holt, 175 A.3d 1014, 1022
(Pa.Super. 2017) (finding an eleven-month delay to be excusable as conflicts
with counsel and changes in judicial assignment caused to the court to
reschedule the appellant’s trial for the earliest possible date and the delay
occurred despite the prosecution’s due diligence); Commonwealth v.
Preston, 904 A.2d 1, 14 (Pa.Super. 2006) (en banc) (finding judicial delay
was not attributable to the prosecution where “the Commonwealth was
prepared to commence trial prior to the expiration of the mandatory period
but the court was unavailable because of scheduling difficulties and the like”)
(citation omitted).
In this case, as Appellant was arrested on June 20, 2014, Appellant’s
mechanical run date was June 20, 2015. The record reveals that before the
defense requested the continuance at issue, discovery was complete and
Appellant’s jury trial had been scheduled for May 18, 2015. However, it
appears from the record that the defense requested additional discovery on
May 15, 2015, which required the postponement of the trial’s commencement.
The only evidence of this request for a continuance is the docket entry on May
15, 2015, which states, “Defense request for continuance; additional
discovery requested. Jury trial date relisted 2/29/16 … Time is ruled
excludable. Earliest possible date is given.”
Appellant did not file a Rule 600 motion until February 26, 2016. At the
Rule 600 hearing held on February 6, 2017, counsel asked the trial court to
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reverse its decision to find excludable delay occurred from May 15, 2015 to
February 29, 2016. Counsel asserted that he was not present during the May
15, 2015 court date, but “believed that the continuance was given because
[prior counsel (the Defender Association of Philadelphia)] requested discovery
(DNA, gunshot residue test results, etc.) which should have been provided by
[the] Commonwealth under the Rules of Criminal Procedure.” Rule 600
motion, 2/26/16, at 2. Counsel admitted that “[prior] counsel was wrong not
to object when the time was held to be excludable.” Id.4
After reviewing the record, we agree with the trial court’s decision to
find the disputed delay to be excludable as Appellant’s motion placed an
obligation on the prosecution that required the delay of the trial’s
commencement to obtain discovery, which the defense had not requested
until this point. The record does not contain any specific information as to the
particular evidence that the defense sought to obtain.
Moreover, the trial court has indicated that the court’s congested docket
caused the delay, rather than the Commonwealth’s lack of due diligence. The
record confirms this point as the trial court granted the defense’s continuance
request and rescheduled trial for the earliest possible date, although the trial
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4 This Court has found that a defendant does not need to make an objection
to preserve his speedy trial rights when his trial is scheduled beyond the run
date “so long as he does not indicate that he approves of or accepts the delay.”
Commonwealth v. Wallace, 804 A.2d 675, 678 (Pa.Super. 2002).
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was later continued for other reasons that the defense does not attribute to
the Commonwealth. Thus, no matter how diligent the Commonwealth was in
providing the allegedly missing discovery to the defense, it could not have
brought Appellant to trial any faster as the next hearing was set for the earliest
possible date.5 As a result, Appellant’s Rule 600 motion was properly denied.
Second, Appellant argues that the trial court erred in denying his
suppression motion with respect to the validity of the search warrant that
police obtained to investigate Appellant’s home.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court's legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court's legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
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5 Appellant cites Commonwealth v. Preston, 904 A.2d 1, 12 (Pa.Super.
2006), in arguing that Commonwealth cannot claim that delay in providing
discovery was excusable if the delay is “due to either intentional or negligent
acts, or merely stems from the prosecutor's inaction.” As the record in this
case contains no details as to what discovery the defense was seeking in
requesting the continuance on May 15, 2015, Appellant has no basis to assert
that the Commonwealth did not exert due diligence in providing the defense
with this unknown discovery request.
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Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa.Super. 2019) (citations
and quotation marks omitted). In addition, “our scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing.” Commonwealth v. Rapak, 138 A.3d 666, 670
(Pa.Super. 2016) (citing In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013)).
Specifically, Appellant claims the search warrant was invalid because
the affidavit of probable cause contained a material misstatement of fact. We
are guided by the following principles:
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d
667 (1978), the Supreme Court held a defendant may attack the
issuance of a warrant if based on untruthful information. Id. at
171, 98 S.Ct. 2674. In requiring a truthful basis for the issuance
of a warrant, the Court explained
[t]his does not mean “truthful” in the sense that every fact
recited in the warrant affidavit is necessarily correct, for
probable cause may be founded upon hearsay and upon
information received from informants, as well as upon
information within the affiant's own knowledge that
sometimes must be garnered hastily.
Id. at 165, 98 S.Ct. 2674. To succeed in attacking a warrant, a
defendant must come forward with “allegations of deliberate
falsehood or of reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof.” Id. at
171, 98 S.Ct. 2674.
Commonwealth v. Gomolekoff, 910 A.2d 710, 715 (Pa.Super. 2006)
(quoting United States v. Harvey, 2 F.3d 1318, 1323 (3rd Cir. 1993))
(emphasis in original and brackets omitted). In Gomolekoff, this Court found
that the trial court did not err in rejecting the appellant’s claim that the search
warrant was rendered invalid by inaccuracies in the affidavit of probable
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cause, when the appellant did not offer any evidence to suggest that the
detective who submitted the warrant application “made deliberately false
statements, or statements, or made statements with a reckless disregard for
the truth.” Gomolekoff, 910 A.2d at 715.
Similarly, in this case, Appellant argues that the search warrant should
have been invalidated because it incorrectly alleged that Laticj McKnight saw
Appellant shoot Nesmith and Crosby. In reality, McKnight was upstairs in
Nesmith’s home when the shooting occurred downstairs; Nesmith ran upstairs
and told McKnight that Appellant had fired shots at Crosby and Nesmith.
However, Appellant never alleged that the police made deliberately false
statements or made statements with a reckless disregard for the truth in
asserting that McKnight had witnessed the shooting. As noted in
Gomolekoff, Appellant was required to make an offer of proof that the
affidavit of probable cause contained a false statement that was deliberately
or recklessly made. As a result, the trial court correctly denied Appellant’s
suppression claim on this basis.
Third, Appellant argued that his statement to police admitting that he
shot Nesmith and Crosby should have been suppressed as he alleges that his
confession was coerced. Specifically, Appellant asks this Court to find his
confession was involuntary because he had been in custody for approximately
nine hours, was deprived of food and drink, and had been under the influence
of a controlled substance.
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Our Supreme Court has set forth the following principles to review
challenges to the voluntariness of a confession:
The test for determining the voluntariness, and thus the
admissibility, of an accused's statement is the totality of the
circumstances surrounding the statement. The mere fact that
there is some passage of time between when an accused is
arrested and when he or she gives an inculpatory
statement does not constitute grounds for suppression of
the statement. Numerous factors should be considered under a
totality of the circumstances test to determine whether a
statement was freely and voluntarily made: the means and
duration of the interrogation, including whether questioning was
repeated, prolonged, or accompanied by physical abuse or threats
thereof; the length of the accused's detention prior to the
confession; whether the accused was advised of his or her
constitutional rights; the attitude exhibited by the police during
the interrogation; the accused's physical and psychological state,
including whether he or she was injured, ill, drugged, or
intoxicated; the conditions attendant to the detention, including
whether the accused was deprived of food, drink, sleep, or medical
attention; the age, education, and intelligence of the accused; the
experience of the accused with law enforcement and the criminal
justice system; and any other factors which might serve to drain
one's powers of resistance to suggestion and coercion.
Commonwealth v. Martin, 627 Pa. 623, 654–55, 101 A.3d 706, 724–25
(2014) (internal citations omitted) (emphasis added).
In the instant case, Appellant was arrested at approximately 9:00 a.m.
However, as Appellant’s behavior was erratic, his speech was incoherent, and
he appeared to be under the influence of a controlled substance, the police
did not take Appellant’s statement while he was in this condition and instead
held him in custody. N.T. 2/6/17, at 43. Meanwhile, the detective assigned
to Appellant’s case, Detective Orlando Ortiz, went to the hospital to speak the
two victims in the shooting, and other officers processed the crime scene.
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When Detective Ortiz returned to the station at 6:00 p.m., he offered
Appellant food and drink and allowed him to go to the bathroom. Detective
Ortiz noted that Appellant appeared to be in a “normal” condition and did not
feel that Appellant was high or intoxicated at that point. Id. at 44. Detective
Ortiz confirmed that in his eighteen years of experience as a police officer, he
had come in contact with individuals under the influence of alcohol and drugs.
Thereafter, Detective Ortiz provided Appellant with written Miranda warnings
which he also read to Appellant. After Appellant signed this document to
acknowledge he understood he was waiving his Miranda rights, he confessed
to shooting Nesmith and Crosby.
In considering the totality of the circumstances surrounding Appellant’s
statement, we find no support for Appellant’s claim that his confession was
involuntary due to his alleged intoxication and the length of his time in police
custody. The trial court found credible Detective Ortiz’s testimony that
Appellant was coherent, able to hold a conversation, and did not exhibit any
signs of intoxication when he gave his confession. To the extent that Appellant
raises other considerations (such as his level of intelligence and experience
with the police), we note that the trial court did not consider such factors as
Appellant did not raise these concerns at the suppression hearing. As noted
above, we may only consider the evidentiary record created at the suppression
hearing. Rapak, supra. Accordingly, we conclude that the trial court did not
err in denying Appellant’s suppression motion on this basis as well.
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Lastly, Appellant claims the trial court abused its discretion in imposing
a manifestly excessive sentence. The following principles apply to our
consideration of this argument:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, w]e conduct a four-
part analysis to determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
When appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement demonstrating
that there is a substantial question as to the appropriateness of
the sentence under the Sentencing Code. The requirement that an
appellant separately set forth the reasons relied upon for
allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the
sentencing decision to exceptional cases.
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)
(quotation marks, some citations, and emphasis omitted).
In this case, Appellant has: (1) timely filed a notice of appeal, (2)
preserved the instant issue in a post-sentence motion, and (3) included a Rule
2119(f) statement in his brief. We therefore turn to the next requirement:
whether the question raised by Appellant is a substantial question meriting
our discretionary review.
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The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Id. (quotation marks and some citations omitted).
The only sentencing challenge that Appellant preserved before the trial
court was his claim that there were “numerous other sentencing alternatives
that could have been appropriately imposed in this case … [more specifically,]
a county sentence.” Motion for Reconsideration of Sentence, 4/19/18, at 1. 6
This Court has held that “a generic claim that a sentence is excessive does not
raise a substantial question for our review.” Commonwealth v. Christine,
78 A.3d 1, 10 (Pa.Super. 2013) (en banc), aff'd, 633 Pa. 389, 125 A.3d 394(2015) (quoting Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.Super.
2013) (stating, “a bald assertion that a sentence is excessive does not by itself
raise a substantial question justifying this Court's review of the merits of the
underlying claim”)).
However, even assuming arguendo Appellant had raised a substantial
question, his challenge to the discretionary aspects of his sentence is clearly
without merit. As Appellant’s prior record score rendered him a repeat felony
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6 Appellant did attempt to raise other challenges to the discretionary aspects
of his sentence for the first time in his appellate brief. However, it is well-
established that “[o]bjections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing or in a motion
to modify the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa.Super. 2013).
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offender (RFEL) and his conviction for persons not to possess a firearm carried
an offense gravity score (OGS) of 10, the guidelines provided a standard range
of 72-84 months with an aggravated/mitigated range of 12 months. For
Appellant’s conviction for carrying a firearm without a license that carried an
OGS of 9, the guidelines provided for a standard range of 60-72 months with
an aggravated/mitigated range of 12 months. For Appellant’s conviction for
carrying a firearm in public in Philadelphia that carried an OGS of 5, the
guidelines provided for a standard range of 24-36 months with an
aggravated/mitigated range of 3 months. See 204 Pa.Code §§ 303.4, 303.15,
§ 303.16(a).
As noted above, the trial court sentenced Appellant to five to ten years’
imprisonment for persons not to possess a firearm, two to five years’
imprisonment for carrying a firearm without a license, and one to five years’
imprisonment for carrying a firearm in public in Philadelphia. Thus, the trial
court imposed individual sentences that fell in the mitigated range of the
sentencing guidelines or were completely below the recommended guideline
ranges. As such, we cannot find the trial court abused its discretion in
imposing these sentences.
For all the foregoing reasons, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2019
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