J-S28037-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERRY JERMAINE JENNINGS : : Appellant : No. 254 MDA 2025
Appeal from the Judgment of Sentence Entered October 1, 2024 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000617-2023
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERRY JERMAINE JENNINGS : : Appellant : No. 255 MDA 2025
Appeal from the Judgment of Sentence Entered October 1, 2024 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000780-2023
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 15, 2025
Appellant, Jerry Jermaine Jennings, appeals from the judgment of
sentence entered in the Lycoming County Court of Common Pleas, following
his jury trial convictions for two counts of delivery of a controlled substance,
and one count each of possession with intent to deliver a controlled substance J-S28037-25
(“PWID”), simple possession, and criminal use of a communication facility.1
We affirm.
The relevant facts and procedural history of this case are as follows. In
2023, Detective Tyson Havens, a member of the Lycoming County Narcotics
Enforcement Unit, began investigating a crack cocaine distribution ring in
Williamsport. At the time, the target of the investigation was Sam Harris, also
known as “Boo.” (N.T. Trial, 7/29/24, at 18). On May 3, 2023, Detective
Havens utilized a confidential informant (“CI”) to make a controlled purchase
of crack cocaine from Mr. Harris. Detective Havens gave the CI $300.00,
because she had previously purchased $150.00 worth of cocaine from Mr.
Harris and he had been holding the CI’s phone as collateral. The $300.00
would thus complete the prior transaction and serve to facilitate a new
transaction.
Detective Havens conducted surveillance of the CI both by an electronic
surveillance device, and in his car. He followed the CI to a location she
arranged on the phone with Mr. Harris. When the CI returned with three bags
of crack cocaine, she stated that she had bought the drugs from a black male
that she did not know. After examining the electronic surveillance, Detective
Havens determined that the man who had sold the CI drugs was Appellant,
whom he recognized and knew as “J-Rock,” and that the CI had been
communicating with Mr. Harris using Appellant’s cell phone speaker. ____________________________________________
1 35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S.A. § 7512(a), respectively.
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Detective Jonathan Rachael, employed by the Lycoming County District
Attorney’s Office Narcotics Enforcement Unit, also conducted surveillance on
the controlled buy. He observed the CI get into a white Honda Civic that was
waiting in the pre-arranged alley. As he left his surveillance position to follow
the car, Detective Rachael temporarily lost sight of it. However, Detective
Rachael eventually located the white Civic at the housing complex at 2500
Federal Avenue in Newberry Estates, parked in front of Apartment 351.
During this time, Detective Robert Anderson was arranging a second
controlled buy using his own CI. Detective Anderson asked his CI to reach
out to Mr. Harris to arrange a purchase of crack cocaine. Wearing an electronic
surveillance device and hidden camera, the CI contacted Mr. Harris, who
instructed her to go to a specific meeting spot. Detective Rachael was
informed by his colleagues that a second controlled buy had been arranged.
Shortly thereafter, Detective Rachael observed a woman he did not recognize2
and Appellant emerge from the area of Apartment 351, enter the white Honda
Civic, and drive west out of his line of sight.
Approximately one hour after the first purchase, Detective Anderson
transported his CI to a parking lot not far from the agreed-upon location, and
she walked the rest of the way to a white Honda Civic to conduct the drug
transaction. Detective Havens also conducted surveillance of this buy. He
observed Detective Anderson’s CI get into a white Honda Civic, driven by a
____________________________________________
2 She was later identified as Ashton Harden.
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black male, and heard her say, “You’re not Boo.” (See id. at 34). Detective
Havens also captured surveillance video, which showed the driver of the car
wearing a distinctive rear-facing SpongeBob SquarePants ball cap and
distinctive denim jacket. After the transaction, the CI returned to Detective
Anderson with a Newport cigarette pack containing two knotted-off plastic
bags of crack cocaine. Subsequently, Detective Anderson applied for and
obtained a search warrant for Apartment 351 on the 2500 block of Federal
Avenue in Newberry Estates, where law enforcement believed Appellant to be
staying at the time.
On May 4, 2023, detectives executed the search warrant. The
apartment was leased by Kitty Lucas, a girlfriend of Sam Harris. Detective
Havens located Appellant in a bedroom with Ashton Harden. Detective Havens
found identification belonging to Appellant, a bag of psilocybin mushrooms
next to Appellant’s wallet, a bag of multi-colored pills later identified as
methamphetamine, and a grocery bag containing a Tylenol bottle holding nine
individually wrapped bags of crack cocaine. The bags were consistent with
the packaging used in both controlled buys. Additionally, the detectives
recovered multiple cell phones from the home, as well as the SpongeBob
SquarePants cap and denim jacket. The white Honda Civic, rented by Sam
Harris, was located near the residence.
Subsequent to Appellant’s arrest, the Commonwealth charged him with
drug offenses at two separate dockets, No. 617-2023 and No. 780-2023.
Docket No. 617-2023 related to the controlled buys, and docket No. 780-2023
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related to the drugs discovered at the apartment following execution of the
warrant. On August 22, 2023, the Commonwealth sought to consolidate the
cases. On September 26, 2023, the trial court granted the motion.
On July 29, 2024, the case proceeded to jury trial. At trial, both CIs
identified Appellant in court as the man who had sold them crack cocaine.
Further, Detective Anderson’s CI testified that she knew and recognized
Appellant but did not know his name—she had previously referred to him as
“Keith.” (N.T. Trial, 7/29/24, at 113). Following trial, the jury convicted
Appellant of the aforementioned charges. On October 1, 2024, the court
sentenced Appellant to an aggregate term of 5 to 20 years’ incarceration.
On October 8, 2024, Appellant timely filed a post-sentence motion,
challenging the sufficiency and weight of the evidence and the discretionary
aspects of sentencing. The court heard argument on the motion on December
17, 2024.3 On February 4, 2025, the court entered an opinion and order
denying the post-sentence motion.
On February 24, 2025, Appellant timely filed separate notices of appeal
at each docket. On February 25, 2025, the trial court ordered Appellant to
file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. On
March 5, 2025, Appellant timely complied. On May 23, 2025, this Court
3 At the hearing, counsel stated that the sufficiency and weight arguments went primarily to “possession with intent to deliver offense that was under [docket No. 617-2023].” (N.T. Hearing, 12/17/24, at 2).
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consolidated Appellant’s appeals sua sponte.4
On appeal, Appellant raises the following issues, which we have
combined and reordered for purposes of analysis:
Did the Commonwealth present insufficient evidence to support a finding of guilt beyond a reasonable doubt to possession with intent to deliver cocaine; specifically, that Appellant possessed the cocaine, where he was not the lessee of the apartment?
Was the Commonwealth’s evidence at trial insufficient to prove elements of criminal use of a communication facility when Appellant did not organize the sale of cocaine?
Did the trial court abuse its discretion when imposing an aggregate sentence of five (5) to twenty (20) years in a state correctional institution when, at best, Appellant was the middleman and there was a failure to weigh adjustment factors?
(Appellant’s Brief, No. 254 MDA 2025, at 12; Appellant’s Brief, No. 255 MDA
2025, at 8).
Appellant’s first two issues concern the sufficiency of the evidence to
support his convictions. In reviewing a challenge to the sufficiency of the
evidence, our standard of review is as follows:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the ____________________________________________
4 Prior to consolidation, Appellant had already filed separate briefs at each appellate docket number.
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Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, the fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super.
2013)).
In Appellant’s first issue, he argues that the Commonwealth presented
insufficient evidence to sustain his conviction for PWID–cocaine related to the
drugs discovered in the apartment. Appellant claims the Commonwealth could
not prove Appellant’s possession of the cocaine where police recovered the
cocaine during the execution of a search warrant in an apartment where
Appellant was not the lessee, relying on Commonwealth v. Rodriguez, 618
A.2d 1007 (Pa.Super. 1993). Further, Appellant insists that evidence of the
drug deliveries the previous day did not prove Appellant had the ability to
control the cocaine seized in the residence. Appellant concludes the evidence
was insufficient to sustain his PWID-cocaine conviction on this basis, and this
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Court must grant relief. We disagree.
The Controlled Substance, Drug, Device and Cosmetic Act provides:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the Commonwealth are prohibited:
* * *
(30) 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). Thus, to sustain a conviction for PWID, the
Commonwealth must prove: (1) that the defendant possessed or
constructively possessed a controlled substance; (2) with the intent to
manufacture, distribute, or deliver it. Commonwealth v. Brown, 48 A.3d
426, 42 (Pa.Super. 2012). “[P]ossession with intent to deliver can be inferred
from the quantity of drugs” possessed by the defendant. Commonwealth v.
Little, 879 A.2d 293, 298 (Pa.Super. 2005), appeal denied, 586 Pa. 724, 890
A.2d 1057 (2005).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession[.]” Commonwealth
v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005) (quoting Commonwealth v.
Haskins, 677 A.2d 328, 330 (Pa.Super. 2005)). “Constructive possession is
the ability to exercise conscious control or dominion over the illegal [item] and
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the intent to exercise that control.” Id. “The intent to exercise conscious
dominion can be inferred from the totality of the circumstances.” Id.
“Constructive possession may be found in one or more actors where the item
in issue is in an area of joint control and equal access.” Commonwealth v.
Valette, 531 Pa. 384, 388, 613 A.2d 548, 550 (1992).
It is well established that, as with any other element of a crime, constructive possession may be proven by circumstantial evidence. In other words, the Commonwealth must establish facts from which the trier of fact can reasonably infer that the defendant exercised dominion and control over the contraband at issue.
Commonwealth v. Parish, 191 A.3d 31, 36-37 (Pa.Super. 2018), appeal
denied, 651 Pa. 10, 202 A.3d 42 (2019) (internal citations and quotation
marks omitted).
Instantly, the trial court observed:
When the detectives of the [Narcotics Enforcement Unit] searched Apartment 351 in Newberry Estates, in the west bedroom they found [Appellant] and the white female who was with him during the delivery to [the CI], Ashton Harden, who was believed to be [Appellant’s] friend or girlfriend. On the nightstand in that bedroom along with [Appellant’s] wallet, credit cards and IDs, there was a bag of psilocybin mushrooms. At the foot of the bed, they found a ShopRite bag inside of which was a Tylenol bottle containing nine knotted baggies of cocaine, a tied-off bag containing multicolored tablets, and documents with [Appellant’s] name and address on them. The parties stipulated to the lab reports. Commonwealth’s Exhibit 18, which contained the results for the substances found during the search of the apartment that were introduced through the testimony of Detective Anderson, showed that the substance in the nine knotted baggies was [cocaine,], the mushrooms [contained psilocybin], and the multicolored pills contained methamphetamine. Materials containing psilocybin and/or
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psilocybin are Schedule I controlled substances.
Detective Havens testified that the bags of crack cocaine were packaged in the knotted bags, which was the same way that the three bags of cocaine that he delivered to [the CI] and she provided to [Detective] Havens the day before were packaged. [Detective] Havens also noted that no items to ingest the cocaine were located during the search. [Detective] Havens also testified as an expert that [Appellant] possessed the nine baggies of cocaine with the intent to deliver it. He noted that the cocaine was packaged in nine individual bags, it was the same packaging as the deliveries the day before, a user would get a better deal buying a single bulk bag of cocaine rather than nine individual bags, and [Appellant] possessed two cell phones, which was typical as many dealers possess one cell phone as their personal phone and a second cell phone for “work.”
When this evidence, and the inferences deducible from the evidence, are viewed in the light most favorable to the Commonwealth as the verdict winner, it is sufficient to show that [Appellant] possessed the cocaine, psilocybin mushrooms and methamphetamine tablets and that he possessed the cocaine with the intent to distribute it.
The court rejects [Appellant’s] claim that the evidence was insufficient because he was not the lessee and the lessee was the friend or girlfriend of [Mr.] Harris. Although Kitty Lucas may have been the friend or girlfriend of [Mr.] Harris and lessee of the apartment, her belongings (including letters from [Mr.] Harris and a photograph of [the two]) were in the east bedroom. None of the drugs were found in the east bedroom; they were all found in the west bedroom where [Appellant] and Ashton Harden were located at the time of the search and they were with [Appellant’s] papers and effects. Therefore, despite the fact that [Ms.] Lucas was the lessee and she was the friend or girlfriend of [Mr.] Harris, the evidence was sufficient to show that [Appellant] possessed the drugs found in the west bedroom.
(Trial Court Opinion, 2/4/25, at 20-22) (internal citations and footnotes
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omitted).
We agree with the trial court’s analysis. Initially, we note that
Appellant’s reliance on Rodriguez, supra is misplaced. In Rodriguez, the
appellant was arrested after police entered an apartment and discovered the
appellant in an open closet; in the closet, police recovered a jacket that had
three baggies of cocaine in a cigarette pack in the pocket. See id. at 1008.
This Court held that the evidence was insufficient to support the appellant’s
constructive possession of the drugs where no drugs or cash were found in
the appellant’s physical possession, and there was no evidence discovered
linking the appellant to the apartment, such as mail or receipts. Id. In
support of its decision, this Court further noted, inter alia, no identification
was found on the jacket containing the drugs; there was no evidence of a prior
drug deal involving the appellant; and the area searched was not in close
proximity to the appellant’s residence. Id. Although the appellant possessed
a key to the apartment, this Court explained that the appellant’s mere
presence at the scene and possession of a key to the apartment were not
enough to establish the appellant’s constructive possession of the drugs. Id.
Unlike the sparse evidence in Rodriguez connecting the appellant to
the drugs, here, the totality of the circumstances established Appellant’s
constructive possession of the cocaine. Specifically, the evidence established
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that Appellant had participated in two drug deliveries the day before5 and had
been observed leaving Apartment 351 with Ms. Harden. Further, police
located Appellant in one specific bedroom of a multi-bedroom house, and
police recovered Appellant’s distinctive clothing worn during the drug
deliveries, his wallet, his ID, and other documents belonging to Appellant in
that bedroom. Neither Mr. Harris nor Ms. Lucas were in the bedroom, only
Appellant and Ms. Harden. Detective Havens also testified that the amount
and manner of packaging, as well as Appellant’s possession of multiple cell
phones, were consistent with the sale rather than personal use of drugs.
Therefore, the Commonwealth presented sufficient evidence to establish that
Appellant constructively possessed the cocaine found in the west bedroom of
Apartment 351 with the intent to deliver it. See Sebolka, supra; Parish,
supra; Brown, supra. Appellant’s first issue merits no relief.
In Appellant’s second issue, he argues that the evidence was insufficient
to support his conviction for criminal use of a communication facility because
the Commonwealth did not present sufficient evidence to establish that
Appellant facilitated the first controlled buy using a cell phone. Appellant
claims that the dealer and buyer set up the transaction, and Appellant only
delivered the product. Appellant insists he made no phone calls and sent no
5 Although Appellant attempts to minimize his role in the drug deliveries and
characterize himself as the “middleman,” the jury convicted Appellant of delivery of a controlled substance in connection with each controlled buys. Appellant does not challenge the sufficiency of the evidence to sustain those convictions on appeal.
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text messages to arrange a drug transaction. According to Appellant, he had
no control over what was said or done during the chat, and he served no
meaningful role in completing the drug deal. Appellant concludes the evidence
was insufficient to sustain his conviction on these grounds, and this Court
must grant relief. We disagree.
The Pennsylvania Crimes Code provides, in relevant part:
§ 7512. Criminal use of communication facility
(a) Offense defined.--A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.
(c) Definition.--As used in this section, the term “communication facility” means a public or private instrumentality used or useful in the transmission of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part, including, but not limited to, telephone, wire, radio, electromagnetic, photoelectronic or photo-optical systems or the mail.
18 Pa.C.S.A. § 7512 (footnote omitted).
To support a conviction for criminal use of a communication facility under Section 7512, “the Commonwealth must prove beyond a reasonable doubt that: (1) [defendant] knowingly and intentionally used a communication facility; (2) [defendant] knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony occurred.” Commonwealth v. Moss, 852 A.2d 374, 382
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(Pa.Super. 2004). “Facilitation” is “any use of a communication facility that makes easier the commission of the underlying felony.” Id.
Under the statute, therefore, an offense is committed if, inter alia, a communication facility is used intentionally to cause or facilitate a felony, and the felony has occurred.
Commonwealth v. Wunderlich, 332 A.3d 112, 116 (Pa.Super. 2025).
Instantly, the trial court explained:
This charge relates to [Appellant’s] use of a telephone to communicate with [Mr.] Harris and to enable communication between [Mr.] Harris and [the first CI] during the transaction. [The CI] was having communications via text message with [Mr.] Harris about purchasing cocaine in days leading up to transaction. The text messages were introduced as Commonwealth Exhibit 7. [The CI] used the same phone number to talk with [Mr.] Harris on the day of the transaction. When [the CI] entered the white Honda Civic, [Appellant] was on his cell phone with [Mr.] Harris. [Detective] Havens could hear them talking on the telephone in real time through the record[ing] device. The recording was played in its entirety for the jury. Since the transaction was arranged through [Mr.] Harris, he not only told the CI where to meet, but he had to have told [Appellant] where to meet [the CI] and given [Appellant] a description of [the CI] so that [Appellant] would meet with the right person and deliver the cocaine to her. A reasonable inference from [Appellant] being on the phone with [Mr.] Harris as [the CI] was entering the vehicle is that [Mr.] Harris communicated with [Appellant] about [the CI] and the drug transaction via [Appellant’s] cellular telephone to facilitate the meeting with [the CI] to deliver the cocaine to her.
… The testimony at trial was that [the CI] had previously arranged to purchase cocaine from [Mr.] Harris for $150 but she did not have the cash to pay him, so he was holding a phone of [the CI’s] to ensure that she would pay him for the cocaine that he had provided to her. [Mr.] Harris would not
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sell more cocaine to [the CI] unless she paid him $150 dollars for the cocaine he previously had provided to her and an additional $150 for the cocaine he was going to provide her on May 3. This was the reason Detective Havens supplied [the CI] with $300 even though she was only buying $150 worth of cocaine on May 3. The conversation about [the CI’s] phone enabled the completion of the prior drug transaction through payment of the owed $150 and facilitated the May 3 drug transaction because if she had not paid for the prior transaction, she would not have received more cocaine on May 3.
(Trial Court Opinion, 2/4/25, at 15-17) (internal citations and footnotes
We agree. Here, the evidence showed that Appellant used his cell
phone, a communications device, to aid in the completion of a drug transaction
between Mr. Harris and the CI. By using his cell phone to speak to Mr. Harris
regarding the exchange of money and the CI’s own cell phone, he made easier
the commission of the underlying felony—namely, a drug transaction. Both
Detective Havens and the CI testified that she had been given $300.00,
$150.00 for the transaction that day, and $150.00 to complete the prior
transaction. Appellant met the CI at a location predetermined by Mr. Harris
and, once there, held his cell phone on speaker so that Mr. Harris could
facilitate this transaction. This conversation was overheard and testified to by
detectives. Therefore, the Commonwealth presented sufficient evidence to
establish that Appellant knowingly and intentionally used his cell phone to aid
in the sale of drugs, and the drug sale did in fact occur. See Wunderlich,
supra. Appellant’s second issue merits no relief.
In Appellant’s final issue, he contends that the court abused its
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discretion when it imposed consecutive sentences which resulted in an
aggregate term of 5 to 20 years’ incarceration. Appellant repeats that he was
only a middleman in the transactions, and he claims that the court further
failed to adequately consider prison adjustment factors.6 Appellant concludes
that the court abused its sentencing discretion by imposing an excessive
sentence that did not properly take into consideration certain mitigating
circumstances, and this Court should vacate his judgment of sentence. We
disagree.
As presented, Appellant’s issue challenges the discretionary aspects of
sentencing. See Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),
appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court
focused solely on serious nature of crime without adequately considering
protection of public or defendant’s rehabilitative needs concerns court's
sentencing discretion); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,
668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195
(1996) (explaining claim that court did not consider mitigating factors
challenges discretionary aspects of sentencing).
6 We note that Appellant’s brief does not explain what factors, if any, he believes the trial court failed to consider as “prison adjustment factors.” At best, Appellant references his attendance in drug and alcohol treatment during a prior incarceration in the Centre County Jail.
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“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to an appeal as of right.” Commonwealth v. Perzel, 291 A.3d
38, 46 (Pa.Super. 2023), appeal denied, ___ Pa. ___, 301 A.3d 426 (2023).
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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by, inter alia, 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. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,
621-22 (2002); Pa.R.A.P. 2119(f). “The determination of what constitutes a
substantial question must be evaluated on a case-by-case basis.”
Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). 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
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fundamental norms which underlie the sentencing process.” Commonwealth
v. Troell, 290 A.3d 296, 299 (Pa.Super. 2023) (quoting Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa.Super. 2010)).
Generally, “[a]n allegation that a sentencing court ‘failed to consider’ or
‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate.” Cruz-Centeno, supra at 545
(quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995),
appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). Nevertheless, this Court
has held that a claim that the court failed to consider factors set forth under
Section 9721(b) and focused solely on the seriousness of the defendant’s
offense raised a substantial question. See Commonwealth v. Trimble, 615
A.2d 48 (Pa.Super. 1992). See also Commonwealth v. Caldwell, 117 A.3d
763 (Pa.Super. 2015), appeal denied, 633 Pa. 774, 126 A.3d 1282 (2015)
(noting that this Court has held that excessive sentence claim, in conjunction
with assertion that court failed to consider mitigating factors, raises
substantial question).
Instantly, Appellant raised his sentencing issue in a timely filed post-
sentence motion, filed a timely notice of appeal, and included in his appellate
brief a Rule 2119(f) statement. Further, Appellant’s claim arguably raises a
substantial question for our review. See id.; Trimble, supra. Thus, we
proceed to address the merits of Appellant’s sentencing issue.
“[S]entencing is vested in the sound discretion of the sentencing court,
and we shall not disturb a sentence absent a manifest abuse of discretion.”
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Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa.Super 2022). “In this
context, an abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Id. at 527-28. Additionally, “long standing precedent
… recognizes that [the Sentencing Code] affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.”
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super. 2005). A trial court
does not abuse this discretion unless the sentence is “grossly disparate” to
the conduct at issue, or “viscerally appear[s] as patently unreasonable.”
Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa.Super.
2010).
Pursuant to Section 9721(b), “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, “a court is
required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d
902 (2005). “In particular, the court should refer to the defendant’s prior
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criminal record, his age, personal characteristics and his potential for
rehabilitation.” Id. Moreover, where the sentencing court had the benefit of
a [pre-sentence investigation (“PSI”) report], the law presumes the court was
aware of and weighed relevant information regarding a defendant’s character
along with mitigating statutory factors. Commonwealth v. Tirado, 870 A.2d
362, 366 n.6 (Pa.Super. 2005).
Instantly, the court stated on the record that it considered the PSI
report, the sentencing guidelines, and all the evidence presented during the
history of this case, including the evidence Appellant presented at the
sentencing hearing. The court read into the record Appellant’s history,
including his personal history regarding his six children and support of his
family, prior record, several write-ups he had received at the county prison,
his lack of enrollment in programs, and his active state parole detainer. In
fashioning its sentence, the court noted:
At least one of the factors that jumps out to me in terms of sentencing is the fact that he was on supervision for, essentially, the same type of offense when he was arrested for these and now he’s convicted of these. … So while I respect the argument of Counsel on Count 2, I am going to run that consecutive[.] I’m not saying I think the price of poker goes up as a saying, but I think that when the deterrent effect of state incarceration doesn’t seem to be dissuading someone from continuing to commit offenses for which he appears to have his adult record is only delivery of a controlled substance, I think it means that his next sentence, while he’s on supervision, needs to be longer.
(N.T. Sentencing, 10/1/24, at 10-11). In its opinion, the court elaborated that
the individual sentences were all within the standard range of the guidelines.
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Further, the court explained that Appellant had failed to adjust in prison and,
in fact, had received three write-ups for disruptive behavior during his time in
county prison, had failed to participate in programming, and had a state parole
detainer. The court also noted that after each of Appellant’s prior convictions,
he was “back dealing drugs within months of his release from prison.” (Trial
Court Opinion, 2/4/25, at 32-33).
The record belies Appellant’s claim that the court failed to appropriately
consider his prison adjustment or any other factor. The court’s on-the-record
explanation of its sentence demonstrates that it had the benefit of a PSI report
and carefully considered and weighed the relevant sentencing factors. See
42 Pa.C.S.A. § 9721(b); Tirado, supra; Griffin, supra. The court ultimately
determined that Appellant’s repeat offenses of the same nature, as well as his
failure to adjust in prison, required a consecutive sentence. See id. On
appeal, Appellant essentially asks this Court to reweigh the sentencing factors
in his favor. We decline to do so. See Schroat, supra. We discern no abuse
of discretion in the court’s imposition of sentence. See id. Accordingly, we
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 10/15/2025
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