Com. v. Smith, K.

• Court: Superior Court of Pennsylvania
• Decided: January 23, 2026
• Docket: 2419 EDA 2024
• Status: Unpublished
• Author: Ford Elliott

Opinion

J-S30039-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEON SMITH : : Appellant : No. 2419 EDA 2024

Appeal from the Judgment of Sentence Entered July 31, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000588-2021

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 23, 2026

Keon Smith appeals the judgment of sentence imposed by the Court of

Common Pleas of Philadelphia County based on violations of the conditions of

his probation. Smith challenges the discretionary aspects of his violation of

probation (VOP) sentence. After review, we affirm.

The court set forth the relevant facts of this case as follows:

On December 28, 2020, [Smith] was arrested and charged with possession of a firearm prohibited, firearm carried without a license and carrying a firearm in public in Philadelphia. [1] [Smith] entered into an open guilty plea on May 20, 2021. He pled [guilty] to all counts and sentencing was deferred. On May 26, 2022, [Smith] was sentenced to eleven and a half to twenty-three months[’ incarceration] followed by three years of reporting

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. § § 6105(a)(1), 6106(a)(1), and 6108, respectively. J-S30039-25

probation. He received credit for time served and was immediately paroled.

In December 2022, due to [Smith]’s absconding and positive drug tests, the Adult Parole and Probation Department (hereinafter “APPD”) requested a violation of probation hearing be scheduled. The hearing was scheduled for March 10, 2023, however, [Smith] failed to appear. Subsequently a bench warrant was issued. On March 16, 2023, a motion to lift the bench warrant was filed and was granted on March 20, 2023.

On March 21, 2023, at the request of APPD a bench warrant was issued for [Smith]’s absconding. The bench warrant was lifted two days later. At a violation hearing on May 2, 2023, the court continued [Smith]’s supervision. A bench warrant was issued for [Smith] on June 29, 2023. He returned to custody on September 20, 2023, [due to his] arrest. On September 29, 2023, the court lifted the bench warrant, lodged a detainer, and denied [Smith]’s motion to remove the detainer.

Trial Court Opinion, 10/26/24, 2-3 (unnecessary capitalization and citations

omitted).

On July 31, 2024, a VOP hearing took place where the Commonwealth

and defense counsel presented their arguments. See N.T. VOP Hearing,

7/31/24, at 4-6. The court reviewed Smith’s Gagnon II summary. See id.;

see also Gagnon II Summary, 7/22/24, at 1-2 (unpaginated).2 Thereafter,

the court found Smith in direct violation of his probation for obtaining a

conviction for aggravated assault and conspiracy to commit aggravated

assault, both with attempts to cause serious bodily injury with extreme

indifference. See N.T. VOP Hearing, 7/31/24, at 10; 42 Pa.C.S. § 9771(b)

(stating if probationer violates specific condition of probation or commits new ____________________________________________

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1993).

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crime, he violates probation).3 On the record, the sentencing court considered

Smith’s mitigation evidence, rehabilitative needs, and relevant sentencing

factors. See N.T. VOP Hearing, 7/31/24, at 7, 10. The court then re-sentenced

Smith to two to four years’ incarceration to be run consecutive to any sentence

he was currently serving, followed by one year of re-entry supervision. See

id. at 10.4

On August 12, 2024, Smith timely filed a post-sentence motion for

reconsideration of his sentence, which the trial court denied. See Post-

Sentence Motion, 8/12/2024, 2-3; Order (denying post-sentence motion),

8/15/24. Subsequently, Smith filed a timely notice of appeal, and he and the

trial court complied with Pennsylvania Rule of Appellate Procedure 1925. See

3 See 18 Pa.C.S. § § 2702(a)(1) and 903, respectively. A trial court is afforded

broad discretion when imposing a sentence following the revocation of probation and is only limited by the maximum sentence that it could have imposed at the time of the probation sentence. See 42 Pa.C.S. § 9771(b); 204 Pa. Code § 303.1(b).

4 Pursuant to the Sentencing Guidelines, Smith’s prior record score was initially calculated as a one but increased to two upon the court’s finding that Smith was in direct violation of his probation. See N.T. VOP Hearing, 7/32/24, at 10. The imposed range for his sentence was below the standard range recommended by the Sentencing Guidelines: twenty-four to thirty-six months of incarceration, plus or minus twelve months for aggravating or mitigating circumstances. See id.; see also 204 Pa. Code § 303.15 (7th ed., amend. 6) (setting offense gravity score of 9 for firearms not to be carried without a license in violation of Section 6106); 204 Pa. Code § 303.16 (7 th ed., amend. 6) (applicable sentencing matrix).

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Notice of Appeal, 8/27/24; 1925(b) Order, 8/27/24; Concise Statement of

Errors, 9/30/24; Trial Court Opinion, 10/26/24. 5

Smith presents the following issue for our review:

Did the court abuse its discretion by failing to give proper consideration to [] Smith’s personal needs and mitigating factors, and[,] as a result[,] is the sentence contrary to the fundamental norms underlying the sentencing process and manifestly unreasonable and excessive?

Appellant’s Brief, at 3.

“The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2015) (en

banc). Since Smith is challenging the discretionary aspects of his sentence,

he must invoke this Court’s jurisdiction by satisfying a four-part test:

(1) whether [the] 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 [the] appellant’s brief has a fatal defect, [see] 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.[] § 9781(b).

Commonwealth v. Harper, 273 A.3d 1089, 1096 (Pa. Super. 2022) (citing

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

and brackets omitted)). “Only if the appeal satisfies these requirements may

5 Smith requested an extension to file his statement of errors upon receipt of

the VOP hearing transcript, which the court granted. See Extension Request, 9/17/24; Order (granting extension), 9/17/24. Therefore, his appeal is timely.

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we proceed to decide the substantive merits of Appellant’s claim.”

Commonwealth v. Luketic, 162 A.3d 1149, 1159-60 (Pa. Super. 2017).

Here, Smith met the first three requirements for invoking our

jurisdiction. See Moury, 992 A.2d at 170. He filed a timely appeal in this

Court, preserved the issue for our review in his post-sentence motion, and

included a Rule 2119(f) statement in his brief. See Appellant’s Brief, at 7-9.

Therefore, we must determine whether Smith has raised a substantial

question for our review.

The existence of substantial question must be evaluated on a case-by-

case basis. See Commonwealth v. Slaughter, 339 A.3d 456, 465 (Pa.

Super. 2025). “[W]e cannot look beyond the statement of questions presented

and the prefatory [Rule] 2119(f) statement to determine whether a

substantial question exists.” Commonwealth v. Diehl, 140 A.3d 34, 44-45

(Pa. Super. 2016). Moreover, for purposes of determining what constitutes a

substantial question, “we do not accept bald assertions of sentencing errors,”

but rather require an appellant to “articulat[e] the way in which the court’s

actions violated the sentencing code.” Commonwealth v. Malovich, 903

A.2d 1247, 1252 (Pa. 2006). “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.” Slaughter, 339 A.3d at 465.

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Instantly, Smith asserts that his sentence was manifestly unreasonable

and excessive because it failed to address all sentencing criteria and was not

individualized to his rehabilitative needs in violation of 42 Pa.C.S. § 9721(b).

See Appellant’s Brief, at 9; 42 Pa.C.S. § 9721(b) (stating sentencing court

shall consider “[t]he 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”). This Court has held that “an excessive

sentence claim—in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question.” Commonwealth

v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Furthermore, a plausible

argument raising “doubts that the trial court did not properly consider” the

Sentencing Code is sufficient to raise a substantial question. See

Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002). Therefore,

Smith has presented a substantial question, and we will address the merits of

the issue.

Our standard of review for a challenge to the trial court’s discretion in

sentencing is well-settled:

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment—a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill- will.

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Commonwealth v. Starr, 234 A.3d 755, 760-61 (Pa. Super. 2020) (citing

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012)).

The rationale for the broad discretion and deference in this standard is

that the sentencing court is “in the best position to determine the proper

penalty for a particular offense based upon an evaluation of the individual

circumstances before it.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quoting Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990)).

Moreover, an appellate court may not reweigh the factors considered by the

trial court when imposing a sentence. See Commonwealth v. Macias, 968

A.2d 773, 778 (Pa. Super. 2009).

“In determining whether a sentence is manifestly excessive, the

appellate court must give great weight to the sentencing court’s discretion, as

he or she is in the best position to measure factors such as the nature of the

crime, the defendant’s character, and the defendant’s display of remorse,

defiance, or indifference.” Commonwealth v. Mouzon, 828 A.2d 1126, 1128

(Pa. Super. 2003).

Following a revocation of probation and resentencing of an offender, the

court must disclose on record at the time of sentencing a statement of reason

or reasons for the sentence imposed. See Commonwealth v. Colon, 102

A.3d 1033, 1044 (Pa. Super. 2014); Pa.R.Crim.P. 708(D)(2) (indicating that

during sentence following revocation of probation, “[t]he judge shall state on

the record the reasons for the sentence imposed.”). “[A] sentencing court

need not undertake a lengthy discourse for its reasons for imposing a sentence

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or specifically reference the statutes in question.” Commonwealth v.

Pasture, 107 A.3d 21, 28 (Pa. Super. 2014). Moreover a “court does not

necessarily abuse its discretion in imposing a seemingly harsher post-

revocation sentence where the defendant received a lenient sentence and then

failed to adhere to the conditions imposed on him.” Pasture, 107 A.3d at 28.

On appeal, Smith contends that his sentence was unreasonably severe

and that the Court failed to consider his mitigation and rehabilitative needs.

See Appellant’s Brief, at 13. Specifically, Smith points to his family

circumstances as well as his “interest in treatment court, violence

prevention[,] and then certain technical classes, including a class on barbering

as well as the HVAC class, while incarcerated.” Id. at 11-12. Moreover, Smith

argues that the trial court only uttered a “brief disclaimer” before his sentence

and did not “grapple” with any of the mitigation materials or arguments

presented at the VOP hearing. Id. at 14. We disagree.

The record reflects that the court heard and considered these factors at

the sentencing hearing. See N.T. VOP Hearing, 7/31/24, at 4-5. The

sentencing court stated that it considered “the gravity of the offense, the need

to provide protection to the community,” N.T. VOP Hearing, 7/31/24, at 10,

as well as “the mitigation [evidence] presented by [Smith]’s attorney

including, [Smith’s] family support, employment history, interest in

educational programs, and interest in violence prevention classes.” Trial Court

Opinion, 10/26/24, at 4 (citing N.T. VOP Hearing, 7/31/24, at 4-5); see also

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42 Pa.C.S. § 9721(b). Therefore, we find the sentencing court disclosed on

the record its reasoning as required. See Colon, supra.

Additionally, Smith acknowledges that the court considered all the

proper criteria on the record, yet, he essentially requests this Court to reweigh

the sentencing factors. See Appellant’s Brief, at 14. This Court will not do that,

and, instead, defers to the judgment of the sentencing court. See

Commonwealth v. Verma, 334 A.3d 941, 947 (Pa. Super. 2025) (we

“cannot reweigh sentencing factors and impose judgment in place of [the]

sentencing court” where the sentencing court “was fully aware of all mitigating

factors”) (citation omitted). After our review, we find no abuse of discretion

by the sentencing court. See Starr, supra. Accordingly, Smith is not entitled

to relief.

Judgment of sentence affirmed.

Date: 1/23/2026

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