J -A16015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA

               v.


 WILLIAM JAMES MCSORLEY

                    Appellant            :   No. 1833 MDA 2018
       Appeal from the Judgment of Sentence Entered June 15, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0002719-2016


BEFORE:    LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:              FILED: JULY 23, 2019

     William James McSorley appeals from the judgment of sentence,
entered in the Court of Common Pleas of Berks County, after a jury convicted

him of persons not to possess firearms.' After careful review, we affirm.

     On March 1, 2016, police responded to a call from Christine Gebhard

indicating that McSorley and his son, Brian Jacobs, were holding her against

her will in their car, and that they had a gun. Police found Gebhard standing

outside the vehicle and arrested McSorley and Jacobs nearby.          Officers

subsequently recovered a handgun near the car and ammunition inside the

car. The owner of the gun, Tom Manis, testified that McSorley possessed the

gun from November 2015 until police recovered it on March 1, 2016.



' 18 Pa.C.S.A. § 6105.

   Former Justice specially assigned to the Superior Court.
J -A16015-19


      On June 7, 2017, a jury convicted McSorley of persons not to possess

firearms, finding McSorley's prior conviction for escape under 18 Pa.C.S.A. §

5121 precluded him from possessing a gun. On June 15, 2018, the trial court

sentenced McSorley to five to ten years' incarceration. On June 25, 2018,

McSorley filed a post -sentence motion challenging the weight of the evidence,

which the court denied on October 16, 2018. McSorley filed a timely notice of

appeal and a court -ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

      McSorley raises the following issues on appeal:

      (1)   Did the trial court incorrectly calculate the prior record score
            by including McSorley's escape conviction[,] which was an
            element of the persons not to possess charge, causing a
            failure to give proper consideration of the requested
            sentence in the mitigated range for McSorley's proper prior
            record score [PRS] of four and instead sentencing McSorley
            to the statutory maximum and bottom of the standard range
            for a prior record score of five?

      (2)   Did the trial court fail to use the proper offense gravity
            score[,] utilizing a designation of the offense gravity score
            of 10 rather than an offense gravity score of 9[,] as the trial
            court's finding in regard to whether the gun was loaded or
            near ammunition as its finding that the gun was loaded was
            not supported by the evidence adduced at trial?[2]

      (3)   Did the trial court abuse its discretion in sentencing the
            defendant to the statutory maximum[,] as it was
            compounded by the error of the PRS calculation and[,] had


2 McSorley initially raised this claim in his statement of questions involved, but
did not discuss the issue in the body of his brief. Therefore, the issue is
waived. See Pa.R.A.P. 2119; see also Commonwealth v. Long, 753 A.2d
272, 278-79 (Pa. Super. 2000) ("When the appellant fails to adequately
develop his argument, meaningful appellate review is not possible.").
                                      -2-
J -A16015-19


              McSorley been designated a PRS of four, the argument for
              a sentence at the bottom or mitigated range sentence would
              have had more persuasive value making the sentence
              imposed the top of the range excessive without proper
              support or explanation and disregarding the mitigating
              circumstances provided by counsel at sentencing?

        (4)   Did the trial court err in failing to order a new trial upon post
              sentence motion[,] as the verdict was against the weight of
              the evidence and shocked the conscience and was
              insufficient as a matter of law since the jury's verdict in this
              matter relied upon the testimony of lay witnesses[,] where
              the evidence produced at trial [was] that these witnesses
              were not credible and motivated by bias and animus?

Appellant's Brief, at 9.

        McSorley's first two preserved challenges3 to the court's prior record

score    calculations   implicate   the   discretionary aspects     of   sentencing.

Commonwealth v. Spenny, 128 A.3d 234, 241 (Pa. Super. 2015). Such
challenges, however, are not appealable as of right. Id. This Court lacks

jurisdiction to hear McSorley's claims unless each of the following are satisfied:

(1) the issue is preserved in the court below; (2) a timely notice of appeal is

filed; (3) the appellate brief includes a concise statement of reasons relied

upon for allowance of appeal with respect to the discretionary aspects of
sentencing; and (4) a substantial question for our review is raised. Id.

        McSorley satisfied the first three prongs of the test:     he filed a timely

notice of appeal; he preserved his discretionary claim in a post -sentence




3 McSorley waived his second claim. See supra, at 2. We, therefore, refer to
what McSorley styled as his first and third claims, and consider them together.
                                          -3-
J -A16015-19


motion; and he included a concise statement pursuant to Pa.R.A.P. 2119(f) in

his brief. With regard to the fourth prong, we note that:

       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.

Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (citations
omitted). Because McSorley alleges the trial court miscalculated his PRS due

to double counting, he has raised a substantial question under the fourth
prong, invoking our appellate review of the merits. See Commonwealth v.

Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000) (citations omitted).

       McSorley alleges the trial court abused its discretion by double counting

his prior conviction both as an element of the underlying offense and in the

PRS calculation. Appellant's Brief, at 12 (citing Commonwealth v. Jemison,

98 A.3d 1254 (Pa. 2014); Commonwealth v. Keiper, 887 A.2d 317 (Pa.
Super. 2005)).

       The plain language of section 303.8(g)(2) of the Sentencing Code only

prohibits inclusion of a prior conviction in the PRS when the prior conviction

changes the grading of the current offense, i.e., from misdemeanor to felony,

third-degree felony to second-degree felony, etc. See Keiper, 887 A.2d at

321.

       McSorley's reliance on Jemison is misguided because Jemison did not

address sentencing.     Compare Appellant's Brief, at 12 (arguing Jemison

                                      -4-
J -A16015-19


overturned Keiper sub silentio by categorizing prior conviction as an element

of persons not to possess) with .7emison, 98 A.3d at 1262 (holding defendant

did   not suffer unfair prejudice by admission into evidence of certified
conviction to prove prior conviction element of persons not to possess). As

McSorley's prior conviction did not change the grade of his current offense,

we find that the trial court did not abuse its discretion by including his prior

conviction for escape in calculating his PRS. See id. Consequently, both his

first and third claims fail.

       Next, McSorley avers his conviction was against the weight of the
evidence.     In evaluating his claim, we apply the following well -settled

standard:

       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       is against the weight of the evidence. Because the trial judge has
       had the opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the findings
       and reasons advanced by the trial judge when reviewing a trial
       court's determination that the verdict is against the weight of the
       evidence. One of the least assailable reasons for granting or
       denying a new trial is the lower court's conviction that the verdict
       was or was not against the weight of the evidence and that a new
       trial should be granted in the interest of justice.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).
       In rejecting McSorley's weight claim, the trial judge found that any
testimonial inconsistencies were minor. Trial Court Opinion, 1/17/2018, at 6.

Although Gebhard suffered from bipolar disorder and Jacobs suffered from
anxiety and depression, the trial court concluded the jury was within its right


                                      -5
J -A16015-19



to   "believe all or at least part of" their testimony.          Id. (quoting
Commonwealth v. Hughes, 908 A.2d 928 (Pa. Super. 2006)). Accordingly,
we find no abuse of discretion in the trial court's denial of McSorley's post -
sentence motion alleging the verdict was against the weight of the evidence.

      Judgment of sentence affirmed.



Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/23/2019




                                     -6
