J-S04031-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    :   IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                   Appellee                      :
                                                 :
                      v.                         :
                                                 :
WILLIAM DONALD LEIGH,                            :
                                                 :
                   Appellant                     :   No. 351 WDA 2015

           Appeal from the Judgment of Sentence November 21, 2014,
                  in the Court of Common Pleas of Blair County,
              Criminal Division, at No(s): CP-07-CR-0000463-2014

BEFORE:        BOWES, OLSON, and STRASSBURGER, JJ.*

MEMORANDUM BY: STRASSBURGER, J.:                       FILED FEBRUARY 3, 2016

        William Donald Leigh (Appellant) appeals from the judgment of

sentence entered after he was convicted of two counts each of involuntary

deviate sexual intercourse with a child (IDSI) and attempted rape of a child,

and one count each of rape of a child and aggravated indecent assault of a

child. We affirm.

        This case arises from the sexual abuse perpetrated by Appellant on

minor victim, J.G. Appellant was the boyfriend of J.G.’s mother (Mother).1

J.G. lived with Appellant, Mother, and Appellant’s then-teenage daughter,

Jasmine.2     According to J.G., when she was between the ages of five and




1
    J.G.’s biological father is P.G. (Father).

2
    Appellant and Mother began living together on February 1, 2010.


*Retired Senior Judge assigned to the Superior Court.
J-S04031-16


eight years old,3 Appellant repeatedly attempted to engage and actually

engaged in sexual acts with her. On May 11, 2013, J.G. spent the night at

the home of her friend, Payge. J.G. told Payge that Appellant “had sex” with

her. N.T., 8/7/2014, at 209.        Payge reported this conversation to her

mother, Tabitha, who then reported it to both Mother and Father’s mother,

Connie.4    Connie reported it to police.

        On March 28, 2014, Appellant was charged with numerous counts,

including the aforementioned offenses, related to the sexual abuse of J.G.

Appellant was tried before a jury on August 6 and 7, 2014.       At trial, J.G.

testified about the sexual acts performed on her throughout the years by

Appellant. She testified that, when she and Appellant were home alone, he

would carry her up to the bedroom and lay her on the bed, sometimes on

her front and sometimes on her back. Appellant would stick “his privates”

into her “butt and mouth … more than once.”5 N.T., 8/6/2014, at 59. She

“told him to stop and he said he’ll try but he never did.” Id. She further

testified that Appellant would spread her legs with his hands, his privates

3
    J.G. turned five in August 2009 and turned eight in August 2012.
4
  Tabitha and Father had an on-again-off-again relationship. On May 11,
2013, Father and Tabitha were not together. Father was dating Lindsay,
who was employed as a stripper. Shortly after these allegations, Father and
Tabitha resumed their relationship. At the time of trial, Father, Tabitha,
Payge, and J.G. resided together.
5
 J.G. confirmed that what she called “privates” was Appellant’s penis. N.T.,
8/6/2014, at 64.


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would be hard, and he tried to stick it in her “hole.” Id. at 66.       When

Appellant put his privates in her mouth, “white stuff” that tasted “yucky”

would come out. Id. at 70. She also testified that sometimes the white stuff

would go on her stomach. Id. at 71. She indicated that when Appellant put

her hand on his privates, white stuff would also come out. Id. at 73.

     In addition to J.G.’s testimony, the Commonwealth presented the

testimony of Mary Twomey, a nurse practitioner who specializes in the care

of sexually-abused children. She examined J.G. on May 30, 2013 and found

no evidence of sexual abuse. However, she testified that such a finding does

not rule out sexual abuse because only “five percent of children that were

sexually abused would have medical findings subsequent to their abuse.” Id.

at 129.

     Additionally, the jury heard the testimony of Shannon Cossaboom, an

expert in conducting forensic interviews on children where sexual abuse is

suspected.    She interviewed J.G. on May 30, 2013, and stated that J.G.

“provide[d] details about the acts that occurred.” Id. at 167. Moreover, that

interview was recorded, and the jury watched the interview.

      Appellant presented a defense that was premised on the theories that

J.G. was not a credible witness and that Appellant was not home alone with

J.G. for these events to actually happen.     Mother testified in Appellant’s

defense that Appellant was never home alone with J.G. and that she




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believed Father and Tabitha put J.G. up to this because Mother was

requesting an increase in child support.      Mother had just filed for that

increase on April 17, 2013, a few weeks before the allegations came to light.

        Connie also testified on Appellant’s behalf.   She testified that she

“regret[s]” having called the police. N.T., 8/7/2014, at 15. Notably, she was

Appellant’s boss at his place of employment from January 2012 to March

2013.    She testified that Appellant’s job included being on-call as a driver

twenty-four hours per day, that he worked every day, and that he was not

home a lot due to his job. She stated that she no longer believed that this

sexual abuse happened.

        Appellant also presented the testimony of M.G. on his behalf to

support the idea that Appellant was never home alone with J.G.         M.G. is

Father’s sister as well as J.G.’s aunt. M.G. and her boyfriend lived with J.G.,

Appellant, Mother, and Jasmine from February 2010 to September 2011.

Because M.G. was not employed, she picked J.G. up from school while

Mother was at work. M.G. moved to Florida from September 2011 to early

2012, then moved back in with J.G. and her family and resumed her

childcare responsibilities.   M.G. also testified that she and Appellant were

involved in a relationship when she was eighteen years old while she was

living with Appellant, Mother, and J.G.




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        Furthermore, one of J.G.’s babysitters, Crystal, testified as to

Appellant’s lack of opportunity to have committed these crimes.             Crystal’s

daughter and J.G. are the same age and are friends. From the summer of

2010 to the summer of 2011, Crystal picked J.G. up from school and J.G.

stayed with her until Mother picked her up after work.

        Appellant also testified.   He testified about his extensive work hours

and the fact that he could never have been in the house alone with J.G. for

more than half an hour or forty-five minutes based on the number of people

living there and his work schedule.

        The jury found Appellant guilty on all charges.           On November 21,

2014,     the   trial   court   conducted   a   sexually   violent   predator   (SVP)

classification hearing and sentencing hearing.             The trial court classified

Appellant as an SVP and sentenced him to an aggregate term of 25½ to 51

years of incarceration.         On December 2, 2014, Appellant filed a post-

sentence motion.6         The trial court held a hearing on the post-sentence

motion and issued its order denying and dismissing it on January 29, 2015.

Appellant timely filed a notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

6
  Appellant acknowledges that his post-sentence motion was filed one day
late; however, Appellant also filed a motion to accept the post-sentence
motion nunc pro tunc. Appellant averred that he mailed the document to
Blair County on November 29, 2014, but the document was not docketed
until December 2, 2014. The Commonwealth did not oppose this motion,
and the trial court granted it.


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      On appeal, Appellant sets forth five issues for our review, which we

have renumbered for ease of disposition.

            1. Was there insufficient evidence to conclude that []
      Appellant had inappropriate sexual contact with J.G.?

            2. Did the trial court err in denying Appellant’s post[-
      ]sentence motion because the jury’s verdict against [] Appellant
      was so against the weight of the evidence as presented at trial
      so as to shock one’s sense of justice?

            [3.] Did the trial court err when it refused to give the
      prompt [complaint] jury instruction as stated in Pa. S.S.J.I.
      (Crim.) 4.13A?

            [4.] Did the trial court err when it refused to grant a
      motion for mistrial when the Commonwealth improperly alluded
      to the fact that Appellant was incarcerated?

            [5.] Did the trial court abuse its discretion by imposing an
      unduly harsh and unreasonable sentence because the trial court
      failed to consider Appellant’s rehabilitative needs versus the
      public’s safety?

Appellant’s Brief at 8 (suggested answers and unnecessary capitalization

omitted).

      We first consider the sufficiency of the evidence to sustain Appellant’s

convictions and set forth our well-settled standard of review.

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to 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 that of
      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



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      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. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012)

(quoting Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)

(citations omitted)).

      Instantly, Appellant does not challenge the specific elements of the

crimes for which he was convicted; rather, he sets forth “six (6) reasons why

the evidence was insufficient to sustain a conviction.” Appellant’s Brief at 22.

      First, Appellant had a good relationship with J.G.       Second,
      because of Appellant’s long work hours, he was rarely home and
      the times when J.G. alleged the incidents to have occurred,
      Appellant was at work. Third, on the rare occasions when
      Appellant was home, at least one (1) other adult was always
      present in the home. Fourth, J.G.’s testimony that she was
      molested by Appellant during Appellant’s birthday party is
      contrary to the objective, credible testimony of Cassandra Nyiri,
      [Mother], [Crystal] and Appellant. Fifth, since the time J.G.
      made the allegations through the time of trial, J.G.’s story has
      consistently changed. Lastly, J.G. could not describe visible
      markings/tattoos on Appellant’s body that one would have seen
      if [she] saw Appellant naked.




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Id. at 22-23. Thus, Appellant contends that “the Commonwealth failed to

present   sufficient   credible   evidence   to   sustain   the   charges   against

[Appellant] beyond a reasonable doubt.” Id. at 40.

     It is clear from Appellant’s argument that he is challenging the

credibility of J.G.’s testimony when considered in conjunction with the

testimony offered by other witnesses. We are cognizant of the “fundamental

principles that a verdict of guilt may not be based upon surmise or

conjecture” and “courts of this jurisdiction have recognized that where

evidence offered to support a verdict of guilt is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, a jury

may not be permitted to return such a finding.” Commonwealth v.

Farquharson, 352 A.2d 545, 50 (Pa. 1976).                   However, “it is well-

established that the uncorroborated testimony of the complaining witness is

sufficient to convict a defendant of sexual offenses.” Commonwealth v.

Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005) (quotation omitted).

     Appellant was convicted of two counts of IDSI with a child and one

count of rape of a child. “A person commits [IDSI] with a child, a felony of

the first degree, when the person engages in deviate sexual intercourse with

a complainant who is less than 13 years of age.” 18 Pa.C.S. § 3123(b). “A

person commits the offense of rape of a child, a felony of the first degree,

when the person engages in sexual intercourse with a complainant who is




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less than 13 years of age.” 18 Pa.C.S. § 3121(c). “Deviate sexual

intercourse is defined as sexual intercourse per os or per anus between

human beings. … In addition to its ordinary meaning, the term sexual

intercourse is defined as intercourse per os or per anus, with some

penetration however, slight.” Commonwealth v. Wilson, 825 A.2d 710,

714 (Pa. Super. 2003) (citations and quotations omitted).

      Appellant was also convicted of aggravated indecent assault of a child.

To sustain this conviction, the Commonwealth had to prove that Appellant

engaged “in penetration, however slight, of the genitals or anus of a

complainant with a part of [Appellant’s] body … without complainant’s

consent … and the complainant is less than thirteen years of age.” 18

Pa.C.S. 3125(a)(1) and (b).     Additionally, Appellant was convicted of two

counts of attempted rape of a child. “A person commits an attempt when,

with intent to commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a).

      Instantly, J.G. testified in great detail about the sexual abuse

perpetrated by Appellant. J.G. testified that when she was under the age of

thirteen, Appellant both tried to and succeeded in putting his penis in her

vagina, anus, and mouth.      The Commonwealth presented the testimony

about J.G.’s forensic interview, along with the interview itself, in support of

J.G.’s claims.   Furthermore, Cossaboom testified from her report that




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Appellant “would spread [J.G.’s] vaginal area apart and touch her with his

finger.” N.T., 8/6/2014, at 163.    Such testimony was sufficient to convict

Appellant of two counts of IDSI with a child and one count of rape of child,

as well as two counts of attempted rape of a child. Accordingly, based on

the foregoing, Appellant’s claim that the evidence was insufficient to support

his convictions fails.

      Appellant next claims that he should be granted a new trial because

the jury’s verdict was contrary to the weight of the evidence. Appellant’s

Brief at 40. Appellant incorporates the arguments he set forth previously to

support this claim. Id. at 41.

            A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. Commonwealth v. Widmer, []
      744 A.2d 745, 751–52 ([Pa.] 2000). A new trial should not be
      granted because of a mere conflict in the testimony or because
      the judge on the same facts would have arrived at a different
      conclusion. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice. It has often been stated that
      a new trial should be awarded when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.

            An appellate court’s standard of review when presented
      with a weight of the evidence claim is distinct from the standard
      of review applied by the trial court:

                   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



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           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.

     Widmer, [] 744 A.2d at 753 (emphasis added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based
     on a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

                 The term “discretion” imports the exercise of
           judgment, wisdom and skill so as to reach a
           dispassionate conclusion within the framework of the
           law, and is not exercised for the purpose of giving
           effect to the will of the judge. Discretion must be
           exercised on the foundation of reason, as opposed to
           prejudice, personal motivations, caprice or arbitrary
           actions. Discretion is abused where the course
           pursued represents not merely an error of judgment,
           but where the judgment is manifestly unreasonable
           or where the law is not applied or where the record
           shows that the action is a result of partiality,
           prejudice, bias or ill-will.

     Widmer, [] 744 A.2d at 753.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (some

citations and quotation marks omitted).




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      The trial court concluded that the “jury’s determination of guilt on all

counts had a reasonable basis based upon the testimony and evidence

presented by the Commonwealth.” Trial Court Opinion, 5/26/2015, at 9.

Instantly, we cannot say that it was an abuse of discretion for the trial court,

after sitting through this jury trial, not to conclude that “the jury’s verdict

[wa]s so contrary to the evidence as to shock one’s sense of justice.” Clay,

64 A.3d at 1045.      Because the trial court did not abuse its discretion,

Appellant is not entitled to a new trial in this case.

      We now turn to Appellant’s argument that the trial court erred by

refusing to give the prompt-complaint jury instruction. Appellant’s Brief at

45-53.    Specifically, Appellant argues that the evidence in this case

supported such an instruction because of the circumstances leading up to

J.G.’s accusations.

            [I]n reviewing a challenge to the trial court’s refusal to
      give a specific jury instruction, it is the function of this [C]ourt to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error. Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties




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     and its refusal to give a requested charge does not require
     reversal unless the Appellant was prejudiced by that refusal.

           It has been said that ‘hue and cry follow rape like
           smoke follows fire.’ The presumption follows that if a
           complaint is made promptly after the alleged
           offense, the victim has not had time to fabricate the
           story and the story is given more credibility.
           Conversely, if a complaint is delayed substantially
           without any reasonable explanation, an inference can
           be drawn regarding the credibility of that complaint
           and against whether the incident in fact occurred.

     Commonwealth v. Snoke, [] 300, 580 A.2d 295, 297 ([Pa.]
     1990).

            The prompt complaint instruction is based upon a belief
     that a victim of a violent assault would reveal the assault
     occurred at the first available opportunity [and] the purpose of
     the instruction is to allow a jury to call into question a
     complainant’s credibility when he or she did not complain at the
     first available opportunity. The propriety of a prompt complaint
     instruction is determined on a case-by-case basis pursuant to a
     subjective standard based upon the age and condition of the
     victim. For example, where the victim of a sexual assault is a
     minor who “may not have appreciated the offensive nature of
     the conduct, the lack of a prompt complaint would not
     necessarily justify an inference of fabrication.” Commonwealth
     v. Jones, [] 672 A.2d 1353, 1357 n. 2 ([Pa. Super.] 1996). This
     is especially true where the perpetrator is one with authority or
     custodial control over the victim. Similarly, if the victim suffers
     from a mental disability or diminished capacity, a prompt
     complaint instruction may not be appropriate.

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (some

citations and quotations omitted).

     Instantly, the trial court concluded, by relying on Snoke, that the

prompt complaint jury instruction was inappropriate for this case.   Appellant




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was a father-figure to J.G., and J.G. was young, between five and eight

years old, when the abuse occurred. Thus, the trial court concluded that it

was “satisfied that [J.G.] may not have fully understood or appreciated the

offensive nature of the conduct of [Appellant].” Trial Court Opinion,

5/26/2015, at 12.      We discern no abuse of discretion in this conclusion;

accordingly, Appellant is not entitled to relief on this basis.

      Appellant next argues that the trial court erred in denying Appellant’s

motion for a mistrial where the Commonwealth asked a question that

referenced Appellant being incarcerated. Appellant’s Brief at 53-56.           The

Commonwealth cross-examined defense witness Crystal.              Crystal testified

that she was a friend of Appellant and Mother and that she regularly picked

up J.G. from school because her daughter and J.G. were friends.            During

cross-examination, the following exchange occurred:

      Q. [I]s [Appellant] your friend?

      A. Yes. He is a friend of mine and my boyfriend’s, correct.

      Q. Okay. And you’ve known him for years?

      A. Oh, yes.

      Q. Okay.      And, ma’am, you don’t want to see him in trouble;
      correct?

      A. No.

      Q. Did you -- have you been writing him letters, even in prison?




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      A. I do believe I may have wrote him maybe one or two letters, I
      think.

      Q. And what about visiting him, have you gone and --

      A. I visited him once.

N.T., 8/7/2014, at 104.

      Counsel for Appellant then requested a side bar and moved for a

mistrial   because   of   the   Commonwealth’s      reference    to     Appellant’s

incarceration.   The Commonwealth requested instead that the trial court

offer a curative instruction. Counsel for Appellant decided that, if the trial

court was going to deny the mistrial, it should not give a curative instruction

and should just “move on.” Id. at 105.

      The following standards govern our review of the denial of a
      motion for mistrial:

            In criminal trials, declaration of a mistrial serves to
            eliminate the negative effect wrought upon a
            defendant when prejudicial elements are injected
            into the case or otherwise discovered at trial. By
            nullifying the tainted process of the former trial and
            allowing a new trial to convene, declaration of a
            mistrial serves not only the defendant’s interest but,
            equally important, the public’s interest in fair trials
            designed to end in just judgments. Accordingly, the
            trial court is vested with discretion to grant a mistrial
            whenever the alleged prejudicial event may
            reasonably be said to deprive the defendant of a fair
            and impartial trial. In making its determination, the
            court must discern whether misconduct or prejudicial
            error actually occurred, and if so, … assess the
            degree of any resulting prejudice. Our review of the
            resulting order is constrained to determining whether
            the court abused its discretion. Judicial discretion



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             requires action in conformity with [the] law on facts
             and circumstances before the trial court after hearing
             and consideration. Consequently, the court abuses
             its discretion if, in resolving the issue for decision, it
             misapplies the law or exercises its discretion in a
             manner lacking reason.

      Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa. Super.
      2008) (internal citations and quotations omitted). The remedy of
      a mistrial is an extreme remedy required only when an incident
      is of such a nature that its unavoidable effect is to deprive the
      appellant of a fair and impartial tribunal.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (some

quotations and citations omitted).

      The trial court concluded that “[u]nder the circumstances that exist

here, we do not believe that the passing reference that [] Appellant was in

jail so unavoidably prejudiced the jury, or formed in their minds a fixed bias

and hostility toward [] Appellant so that they could not weigh the evidence

objectively and render a true verdict.” Trial Court Opinion, 5/26/2015, at 15

(emphasis in original).    As the trial court pointed out, it was counsel for

Appellant who did not want a curative instruction because he did not wish to

call further attention to the remark. Based on the foregoing, we agree that

the trial court did not abuse its discretion in denying a mistrial. While the

Commonwealth should have been more thoughtful with its question, and we

do not condone its conduct, these two questions posed toward the end of a

two-day jury trial did not deprive Appellant of a fair trial. Thus, Appellant is

not entitled to relief.



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     Finally, Appellant attempts to challenge the discretionary aspects of his

sentence.

     It is well settled that, with regard to the discretionary aspects of
     sentencing, there is no automatic right to appeal.

          Before [this Court may] reach the merits of [a challenge to
          the discretionary aspects of a sentence], we must engage
          in a four part analysis to determine: (1) whether the
          appeal is timely; (2) whether Appellant preserved his
          issue; (3) whether Appellant’s brief includes a concise
          statement of the reasons relied upon for allowance of
          appeal with respect to the discretionary aspects of
          sentence; and (4) whether the concise statement raises a
          substantial question that the sentence is appropriate under
          the sentencing code.... [I]f the appeal satisfies each of
          these four requirements, we will then proceed to decide
          the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

     Appellant timely filed a notice of appeal. Appellant did not object to

his sentence during the sentencing hearing; however, he did seek

reconsideration of his sentence in his post-sentence motion.       Appellant’s

brief contains a Pa.R.A.P. 2119(f) concise statement.         Thus, we must

determine whether he has raised a substantial question worthy of appellate

review.

          The determination of whether a substantial question exists
          must be made on a case-by-case basis. It is only where
          an aggrieved party can articulate clear reasons why the
          sentence issued by the trial court compromises the
          sentencing scheme as a whole that we will find a
          substantial question and review the decision of the trial



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         court.   This [C]ourt has been inclined to find that a
         substantial question exists where 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 underlying the sentencing process.

      Also, a bald allegation that a sentence is excessive does not
      raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

omitted).

      Appellant argues that a “claim that the sentencing court sentenced

within the guidelines but failed to consider the factors set out in 42 Pa.C.S.A.

§ 9721(b) presents a substantial question.” Appellant’s Brief at 14.        We

disagree.

            [O]rdinarily, a claim that the sentencing court failed to
      consider or accord proper weight to a specific sentencing factor
      does not raise a substantial question. Specifically, [t]here is
      ample precedent to support a determination that [a claim that
      the trial court failed to consider an appellant’s rehabilitative
      needs] fails to raise a substantial question....

             Similarly, this Court has held on numerous occasions that
      a claim of inadequate consideration of mitigating factors does
      not raise a substantial question for our review. However, prior
      decisions from this Court involving whether a substantial
      question has been raised by claims that the sentencing court
      ‘failed to consider’ or ‘failed to adequately consider’ sentencing
      factors has been less than a model of clarity and consistency. In
      Commonwealth v. Dodge, [77 A.3d 1263 (Pa. Super. 2013),]
      this Court determined an appellant’s claim that the sentencing
      court “disregarded rehabilitation and the nature and
      circumstances of the offense in handing down its sentence”
      presented a substantial question. [Id.] at 1273.




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Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa. Super. 2015) (en

banc) (some citations and quotation marks omitted).

      In his 2119(f) statement, Appellant sets forth a bald assertion that the

trial court failed to consider the factors set forth in 42 Pa.C.S. § 9721(b).

That provision provides, in relevant part, that “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.” Id. Appellant does not claim that his

sentence is excessive, nor does he explain how his standard range sentence

violates any particular section 9721(b) factor. Accordingly, we conclude that

he has failed to present this Court with a challenge worthy of appellate

review. For these reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/3/2016


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