J-A05015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JARROD DOLPHIN                             :
                                               :
                       Appellant               :   No. 209 WDA 2019

       Appeal from the Judgment of Sentence Entered November 1, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0014805-2016


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 27, 2020

        Appellant, Jarrod Dolphin, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 17 to 34 years’ incarceration, imposed after

he was convicted, following a non-jury trial, of third-degree murder, person

not to possess a firearm, and carrying a firearm without a license. Appellant

challenges the sufficiency and weight of the evidence to sustain his

convictions, as well as the discretionary aspects of his sentence. After careful

review, we affirm.

        The trial court summarized the facts of Appellant’s case, as follows:

               Samantha Arndt, a security officer with Nease Consulting
        Services was working on August 10, 2016[,] when she heard a
        call for assistance from the City of Pittsburgh Police related to
        shots fired. ([N.T. Trial, 7/31/18-8/6/18, at] 120). As part of her
        duties, she obtained security footage from the area of 856 Mt.
        Pleasant Road in Northview Heights. ([Id. at] 120). When she
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A05015-20


     reviewed the footage, she … observed a male shoot another male,
     then run through 856 Mt. Pleasant and continue to an unknown
     location. ([Id. at] 121).

           Officer John Klaczak, an officer with the City of Pittsburgh’s
     Night Felony/Mobile Crime Unit, testified that he arrived at 856
     Mt. Pleasant Road in Northview Heights at 1:15 p.m. on August
     10, 2016. ([Id. at] 134). Upon arrival, Officer Klaczak began to
     take photos of the scene. ([Id. at] 136). The photographs
     depicted the location of six (6) .40 calib[e]r empty cartridge
     casings, bloodstains, and [the] area around 856 Mt. Pleasant
     Road. ([Id. at] 138-47). Officer Klaczak also collected physical
     evidence, including the six (6) .40 calib[e]r shell casings. ([Id.
     at] 148).

            Marcel Cogburn testified that he was chilling and sitting
     around his house located at 856 Mt. Pleasant Road in Northview
     Heights in August 10, 2016[,] with his brother, Malik Cogburn,and
     his friends: Andre Barrow, Akil Williams, Brandon McCaskill, and
     “Little Homey.” ([Id. at] 152-54). The real name of “Little
     Homey” is Jarrod Dolphin and was identified as … [Appellant]….
     ([Id. at] 154, 173). A little while later, “NuNu,” whose real name
     is Manly Banks, III, arrived. ([Id. at] 154). At some point that
     evening, Marcel Cogburn went to his mother’s house to get toilet
     paper. ([Id. at] 155). Marcel Cogburn later returned and was
     hanging out outside of his house with this group of friends. ([Id.
     at] 166). He went inside his house and heard gunshots. ([Id. at]
     169). After the shooting, [Appellant] ran into Marcel Cogburn’s
     house with Malik Cogburn. ([Id. at] 177). Thereafter, [Appellant]
     ran down the steps, and out through the basement. ([Id. at]
     176). When Marcel Cogburn looked outside, he saw that Manly
     Banks, III[,] was shot outside of his home. ([Id. at] 165).

           After the shooting, Marcel Cogburn, Malik Cogburn, Andre
     Barrow, Brandon McCaskill, and Akil Williams were taken into
     custody and photographed in the clothing they were wearing.
     ([Id. at] 157-62).

           Malik Cogburn testified that he was at 856 Mt. Pleasant Road
     in Northview Heights on August 10, 2016[,] with [Appellant] and
     Manly Banks, among others. ([Id. at] 183). That evening, Malik
     Cogburn went outside of the residence and was followed by
     [Appellant]. ([Id. at] 186). Manly Banks approached Malik
     Cogburn and [Appellant] from across the street and asked about



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     smoking marijuana. ([Id. at] 187). Malik Cogburn went a few
     houses down to obtain the marijuana and when he returned[,]
     Manly Banks was standing in front of or leaning on a stoop in front
     of 856 Mt. Pleasant Road and was talking to [Appellant], who was
     standing next to a railing. ([Id. at] 188). At this time, [Appellant]
     and Manly Banks began to argue about a word [Appellant] kept
     using. ([Id. at] 190-91). Manly Banks told [Appellant] to stop
     using the word “Jeez,” and the matter escalated into a verbal
     argument. ([Id. at] 191-92). At this point, Malik Cogburn told
     Manly Banks to leave and come back tomorrow. ([[Id. at] 192).

           According to Malik Cogburn, Manly Banks did not leave, but
     instead requested [Appellant] be removed from the premises.
     ([Id. at] 193). While they were arguing, [Appellant] drew his gun
     and shot Manly Banks, killing him. ([Id. at] 196). Manly Banks
     was not armed. ([Id. at 193). After the shooting, Malik Cogburn
     ran into his house and checked on his girlfriend. ([Id. at] 197).
     When Malik Cogburn saw [Appellant], he told [Appellant] to leave
     through the back door. ([Id. at] 197).

            Officer Frank Niemiec, a police officer with the City of
     Pittsburgh Police[,] was working on patrol with Zone 1 on August
     10, 2016. ([Id. at] 265). After he started his shift, he was
     heading to Northview Height[s] to assist with service of subpoenas
     when he heard a call on the radio that there were shots fired in
     the 800 block of Mt. Pleasant Road with a man down. ([Id. at]
     267). When he arrived, he checked for a pulse, and did not feel
     one and began CPR. ([Id. at] 268). He continued performing CPR
     until the medics arrived. ([Id. at] 268-69). Officer Niemiec did
     not see a firearm anywhere [o]n or around Manly Banks. ([Id.
     at] 273).

           Officer Donald Reola, a police officer with the City of
     Pittsburgh Police[,] was working in the Zone 1 area of the City on
     August 10, 2016. ([Id. at] 280). He was in the Northview Heights
     housing complex to serve subpoenas at 323 Mt. Pleasant Road.
     ([Id. at] 280). When he arrived at 323 Mt. Pleasant Road, he
     heard five (5) gunshots. ([Id. at] 281). Officer Reola announced
     what he heard and headed in that direction. ([Id. at] 282). Upon
     arrival, he found Manly Banks lying in a pool of blood with
     numerous gunshot wounds. ([Id. at] 282). Although [the officer]
     was not able to find a pulse, he began to perform CPR, which was
     ultimately unsuccessful. ([Id. at] 283).




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J-A05015-20


            Officer Artie Patterson, an officer with the Violent
     Crimes/Homicide Unit of the City of Pittsburgh Police[,] testified
     that she received a call … for a homicide at 865 Mt. Pleasant Road.
     ([Id. at] 293). Officer Patterson interviewed Malik Cogburn on
     August 10, 2016[,] after he was taken to department
     headquarters for questioning. ([Id. at] 295). Malik Cogburn’s
     statement to Officer Patterson was recorded and admitted into
     evidence. It was somewhat consistent with his trial testimony.
     First, he stated that he had turned to walk to go buy cigarettes,
     [and] was about two (2) feet away from the house when he heard
     five or six shots. ([Id. at] 297). He stated that there was no
     argument or talking or any form of disagreement before shots
     were fired. ([Id. at] 300). Malik Cogburn told Officer Patterson
     that the shooter, who he referred to as “G-Bo” and later identified
     as [Appellant], was not personally known to him, but that[,] based
     upon the language [Appellant] used, he believed [Appellant] was
     from the Hill District. ([Id. at] 302). After the shooting, “G-Bo”
     was calmly sitting on the couch when Malik Cogburn went to
     [place] a phone to call 911. ([Id. at] 302-03). When “G-Bo”
     realized that Malik Cogburn was getting a phone, “G-Bo” told Malik
     Cogburn that he would shoot his girlfriend if he didn’t put the
     phone down. ([Id. at] 303). “G-Bo” then asked Malik Cogburn
     to sneak him out of the back door, which he did. ([Id. at] 306).

           Detective George Satler, a City of Pittsburgh Homicide
     Detective, testified that on August 10, 2016[,] he received a call-
     out to assist with a homicide investigation. ([Id. at] 319). On
     that evening, he interviewed Andre Barrow and the next day, he
     interviewed Marcel Cogburn. ([Id.]). During the interview with
     Marcel Cogburn, Detective Satler showed him a photo array, and
     Marcel Cogburn positively identified the person he knew as “Little
     Homey,” who was later identified to be [Appellant]. ([Id. at] 322,
     335). Marcel Cogburn agreed to make a taped statement, which
     was admitted into evidence. At this time, Marcel was a teenager,
     and his parents were present in the interview room with him.
     ([Id. at] 324). Marcel Cogburn’s statement was that he, Andre
     Barrow, Akil Williams, Brandon McCaskill, and [Appellant] were
     standing outside of 856 Mt. Pleasant Road. ([Id. at] 326-27). He
     stated that he went back into the house, along with a few others,
     and while he was in the bathroom, Manly Banks appeared. ([Id.
     at] 327). He went back outside to join Manly Banks, [Appellant],
     and Malik Cogburn, who were having a friendly discussion. ([Id.
     at] 329). A few minutes later, he went inside and less than a
     minute later he heard gunshots. ([Id.]). Immediately, Malik


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J-A05015-20


        Cogburn [ran] into the house followed by [Appellant]. ([Id. at]
        330). At that point, [Appellant] was told by someone in the house
        to run, and he left the residence through the basement. ([Id. at]
        331).

              Detective Anthony Beatty, a City of Pittsburgh Police Officer
        assigned to the Violent Crimes/Homicide Unit, testified that he
        was called out from home on August 10, 2016[,] to investigate
        the fatal shooting of Manly Banks, III. ([Id. at] 354). After
        stopping at police headquarters to obtain supplies, he headed to
        the scene to begin his investigation. ([Id. at] 355). After
        [Appellant] was apprehended in McKees Rocks in October 2016,
        Detective Beatty took him into custody. ([Id. at] 361). He
        noticed that [Appellant’s] physical condition appeared to be fine.
        ([Id. at] 362). Once in the car, [Appellant] asked the officers,
        “How did y’all find me?” ([Id. at] 363).         [Appellant] was
        cooperative and followed directions. ([Id. at] 364). [Detective]
        Beatty read [Appellant] his Miranda[1] rights from the Pittsburgh
        Bureau of Police Miranda rights form. ([Id. at] 365). [Appellant]
        waived his rights, and agreed to speak with Detective Beatty.
        ([Id. at] 369).

               Initially, [Appellant] denied being in Northview Heights or
        anywhere in that vicinity at the time Manly Banks was shot to
        death. ([Id. at] 369-70). However, after speaking with Detective
        Fallert, [Appellant] made the following audio and video recorded
        statement: he stated that on August 10, 2016, he went to hang
        out with people he thought were friends. ([Id. at] 390). He
        stayed there for a while, left, and came back. ([Id. at] 391). He
        was called outside for a cigarette, and he was approached by
        another male who stated, “leave Northview or [you’ll] die.”
        ([Id.]). [Appellant] replied, “you got it, big dog” and took a step
        back. ([Id. at] 393). The other male replied, “I’m not your dog,
        don’t call me your dog,” and pulled a gun from the center of his
        waistband. ([Id. at] 392-93, 405). [Appellant] then drew his
        firearm and fired his gun ten (10) or [eleven] (11) times. ([Id.
        at] 395). He then ran into the house, down into the basement,
        and out of the rear of the house. ([Id. at] 396). Shortly
        thereafter[,] he called a jitney, [which] took him toward Duquesne
        where he dismantled and disposed of the firearm, which he

____________________________________________


1   Miranda v. Arizona, 86 S.Ct. 1602 (1966).


                                           -5-
J-A05015-20


      admitted was a Smith & Wesson 0.40 calib[e]r semiautomatic
      handgun. ([Id. at] 399).

           There was no gun recovered at the scene of 865 Mt. Pleasant
      Road or on the person or clothing of Manly Banks. ([Id. at] 423-
      24).

             Dr. Todd Luckasevic, a forensic pathologist/assistant
      medical examiner for the Allegheny County Medical Examiner’s
      Office, after being qualified as an expert in forensic pathology,
      testified that he had examined the remains of Manly Banks, III,
      the victim in this case. ([Id. at] 432). He testified that Manly
      Banks had suffered from seven (7) gunshot wounds to his trunk
      and extremities. ([Id. at] 434). Dr. Luckasevic testified that
      gunshot wound “A” entered through the left chest and constituted
      three lethal wounds, as it injured the heart, lung, and aorta. ([Id.
      at] 435-36).      The survivability for this type of wound is
      approximately one minute. ([Id. at] 437). Dr. Luckasevic
      testified that there was no natural disease process, and he
      concluded that Manly Banks died as a result of multiple gunshot
      wounds to the trunk. ([Id. at] 451). Further, Dr. Luckasevic
      testified that the manner of death was a homicide. ([Id.]).

            Detective Beatty testified that [Appellant] had previous
      convictions for carrying a prohibited offensive weapon and did not
      have a license to carry a concealed weapon. ([Id. at] 475-77).

Trial Court Opinion (TCO), 5/29/19, at 3-8.

      Based on this evidence, the trial court convicted Appellant of the above-

stated offenses. On November 1, 2018, he was sentenced as set forth supra.

Appellant filed a timely post-sentence motion, which was denied. He did not

timely appeal, but after he filed a petition under the Post Conviction Relief Act,

42 Pa.C.S. §§ 9541-9546, his appellate rights were reinstated. Appellant then

filed the instant nunc pro tunc appeal, and he complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. The court filed its Rule 1925(a) opinion on May 29, 2019. Herein,

Appellant states the following issues for our review:

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      I. Under Pennsylvania law, [did] the Commonwealth prove beyond
      a reasonable doubt that [Appellant] committed the crime of third[-
      ]degree murder when [it] neglected to rebut [Appellant’s] self-
      defense claim by failing to prove [Appellant] … provoked an act of
      violence, failed to retreat in those circumstances, or used
      excessive force?

      II. Under Pennsylvania law, does a verdict for third[-]degree
      murder shock the conscience and warrant a new trial when [the]
      trial court ignored undisputed evidence, and misapplied the law of
      self-defense?

      III. Under Pennsylvania law, did the trial court abuse its discretion
      by sentencing [Appellant] based on evidence and information
      already factored into the sentencing guidelines?

Appellant’s Brief at 11 (unnecessary capitalization omitted).

      Appellant’s first argument challenges the sufficiency of the evidence.

Our standard of review for such claims is well-settled:

      [W]hether[,] viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as the] verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying [the
      above] test, we may not weigh the evidence and substitute our
      judgment for the fact-finder. In addition, we note that the facts
      and circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015).

      Here, Appellant contends that the Commonwealth’s evidence was

insufficient to satisfy its burden of disproving his claim of self-defense. Our

Supreme Court has made clear that “once some evidence, from whatever



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source, is presented to justify a finding of self-defense, the burden is upon the

Commonwealth to prove beyond a reasonable doubt that the [appellant] was

not acting in self-defense.” Commonwealth v. Rivera, 108 A.3d 779, 791

n.7 (Pa. 2014) (citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1124

n.13 (Pa. 2012) (citation omitted)). Our Court further explained in Rivera

that,

        to prevail on a justification defense, there must be evidence that
        the defendant (a) ... reasonably believed that he was in imminent
        danger of death or serious bodily injury and that it was necessary
        to use deadly force against the victim to prevent such harm; (b)
        that the defendant was free from fault in provoking the difficulty
        which culminated in the slaying; and (c) that the defendant did
        not violate any duty to retreat. Thus, the Commonwealth satisfies
        its burden of disproving self-defense where it proves any one of
        the following: the defendant did not reasonably believe that it was
        necessary to kill to protect from himself imminent death or great
        bodily harm; the defendant was not free from fault in provoking
        or continuing the difficulty which resulted in the slaying; or, the
        defendant violated a duty to retreat or avoid the danger.
        Regarding the derivative and lesser defense of imperfect self-
        defense, all principles of justification must be satisfied, with the
        exception that there exists an unreasonable, rather than a
        reasonable belief that deadly force was required to save the
        defendant’s life.

Id. at 791 (brackets, citations, and footnote omitted).

        Here, the trial court found that the Commonwealth disproved Appellant’s

claim of self-defense, explaining:

              The facts, as set forth here, do not establish that [Appellant]
        acted in self-defense. Initially, the video evidence establishes that
        [Appellant], Manly Banks, and Malik Cogburn were standing
        outside of 865 Mt. Pleasant Road. Manly Banks was leaning on a
        brick pillar when [Appellant] pulls his firearm from his right pants
        pocket and fires seven (7) shots into Manly Banks, killing him.
        The video evidence did not show any aggressive movements or

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J-A05015-20


      mannerisms by Manly Banks prior to [Appellant’s] actions.
      Further, testimony from Malik Cogburn established that
      [Appellant’s] actions were unprovoked.             As such, the
      Commonwealth disproved self-defense, and the evidence was
      sufficient to convict [Appellant] of third degree murder.

TCO at 10.

      Essentially, the court found that Appellant was the aggressor in the

shooting, and that his actions were not provoked by Banks. In challenging

this decision, Appellant stresses his trial testimony that Banks threatened to

kill him and that, as he took a step back to leave the scene, Banks “reached

[in]to his waistband and pulled what [Appellant] believed to be a gun.”

Appellant’s Brief at 20. Appellant points out that Malik Cogburn also testified

that Appellant and Banks argued, and that, during the dispute, Banks “was

taking his phone out, but it looked like he was drawing [a gun] because he

was in a rage….” N.T. Trial at 194. Malik further stated that it was Banks who

approached him and Appellant, “as opposed to [Appellant] going towards …

Banks and instigating an argument or a fight.”         Appellant’s Brief at 21.

According to Appellant, this evidence established that his “use of force was

objectively reasonable under the circumstances because he had a reasonable

belief that he was in fear of death or serious bodily injury[,]” and the

Commonwealth failed to disprove that he acted in self-defense. Id. at 26.

      We are unconvinced. Appellant disregards other evidence presented at

trial that casts doubt on the credibility of his and Malik’s trial testimony. For

instance, Appellant does not contest the trial court’s finding that, in the video

of the shooting, Banks made no aggressive movements toward Appellant prior


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J-A05015-20



to Appellant’s pulling his gun. Moreover, just hours after the shooting, Malik

provided a statement to police in which he claimed that Appellant and Banks

were not arguing before the shooting. See N.T. Trial at 300. Specifically,

Malik stated, “They wasn’t arguing. They wasn’t talking. It was nothing. It

was just gunshots.”      Id.   Notably, Malik made no mention of Banks’

threatening to kill Appellant or reaching for his cell phone before Appellant

fired his gun. Additionally, Malik’s brother, Marcel, also told police that he

observed Appellant and Banks having a friendly discussion less than a minute

before shots were fired. See id. at 329.

      Furthermore, we agree with the Commonwealth that Appellant’s actions

after the shooting cast doubt on the credibility of his claim that he shot Banks

in self-defense. For instance, after the shooting, Appellant followed Malik into

his house and, when Malik went upstairs to get a phone to call police, Appellant

threatened to kill Malik’s girlfriend if Malik did not put the phone down. Id. at

303. Appellant then fled from Malik’s home, dismantled the murder weapon,

and threw it in the river.      Id. at 398.     Appellant also admitted that

approximately one month after the shooting, he discovered that the police

were looking for him, yet he did not turn himself in. Id. at 400.

      Additionally, when Appellant was apprehended two months after the

shooting, he initially denied being at the scene at all. Id. at 371. He continued

to deny that he was the shooter even after police confronted him with witness

statements and images (taken from the video surveillance) that showed the

shooter had a stomach tattoo identical to the tattoo on Appellant’s stomach.

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J-A05015-20



Id. at 372-75. Only after several conversations with detectives did Appellant

finally claim that he shot Banks in self-defense.

      Given the totality of this evidence, the Commonwealth sufficiently

disproved Appellant’s testimony that he acted in self-defense. Thus, his first

issue is meritless.

      Next, Appellant avers that the trial court’s verdict was contrary to the

weight of the evidence presented.

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well[-]settled that the jury is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses, and a new trial based on a weight of
      the evidence claim is only warranted where the jury’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate review
      is limited to whether the trial judge’s discretion was properly
      exercised, and relief will only be granted where the facts and
      inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Here, Appellant claims the trial court’s verdict was against the weight of

the evidence because it found that the Commonwealth had sufficiently

disproved his self-defense claim “without any analysis or consideration of

whether [Appellant] was the [a]ggressor, whether he violated a duty to

retreat[,] or whether he used excessive force.” Appellant’s Brief at 31. Given

our analysis of Appellant’s sufficiency claim, set forth supra, we deem



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Appellant’s cursory challenge to the weight of the evidence inadequate to

demonstrate an abuse of discretion by the trial court.

      Lastly, Appellant argues that the sentence imposed by the court was

excessive given “the particular circumstances of the offenses involved.” Id.

at 33 (capitalization and bold formatting omitted). Appellant’s issue implicates

the discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (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, 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. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006)…. Objections 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. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)….

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). 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.”
      Sierra, supra at 912–13.




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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

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

      Here, Appellant filed a timely, nunc pro tunc appeal, and he preserved

his claims in a post-sentence motion. In his brief, he includes a Rule 2119(f)

statement in which he argues that the court’s sentence is excessive because

he has minimal criminal history, he presented “[s]trong evidence of [s]elf-

[d]efense[,]” there was a “lack of evidence proving malice[,]” and the court

considered conduct already taken into account by the sentencing guidelines.

Appellant’s Brief at 32-33. However, the only claim Appellant develops in any

meaningful fashion is his assertion that the court improperly considered his

“juvenile history … [as] an aggravating factor” because his prior record was

already factored into the calculation of the applicable sentencing guideline

ranges. Id. at 35. We consider this claim as presenting a substantial question

for our review. See Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa.

Super. 2000).    Appellant’s remaining arguments are waived for lack of

development. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

2009) (“[W]here an appellate brief fails to provide any discussion of

a claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived.”).

      In reviewing the merits of Appellant’s sentencing challenge, we are

mindful that,

      [s]entencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an

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      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.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

      Presently, Appellant complains that the court improperly ‘double-

counted’ his juvenile record in imposing his sentence. In support, he quotes

the following statement by the court at sentencing:

      [The Court]: I do not find there to be any mitigating factors
      present. I do find that there [is] an aggravating factor and that
      you had multiple chances with rehabilitation both through Juvenile
      Court and Criminal Court. Most of these offenses were firearm
      offenses. You have not availed yourself of these opportunities for
      rehabilitation.

N.T. Sentencing, 11/1/18, at 588.

      Contrary to Appellant’s argument, we discern nothing improper about

the court’s consideration of his prior record.      Clearly, the court took that

information into account in assessing Appellant’s potential for rehabilitation.

The court noted that Appellant had not taken advantage of his prior

opportunities to change his criminal behavior, and determined that a lengthier

sentence was warranted in this case. The court did not abuse its discretion.

      Judgment of sentence affirmed.




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J-A05015-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2020




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