J-S63007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    WARREN FITTS                               :
                                               :
                       Appellant               :       No. 136 EDA 2018

            Appeal from the Judgment of Sentence August 28, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015121-2012


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED JANUARY 13, 2020

        Appellant, Warren Fitts, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas, following his bench trial

convictions for rape of an unconscious victim, sexual assault, indecent

exposure, indecent assault of an unconscious person, and simple assault. 1 We

affirm.

        The relevant facts and procedural history of this case are as follows. At

approximately 2:00 a.m. on September 26, 2012, Witness was walking his

dog near his apartment building when he noticed Appellant having sex with

Victim on the street. Victim appeared to be unconscious. Witness alerted his

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3121(a)(3), 3124.1, 3127(a), 3126(a)(4), and 2701(a),
respectively.
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apartment security guard, who went outside to confront Appellant. After the

guard ordered Appellant multiple times to stop, Appellant stood up, pulled up

his pants, and started to walk away. The security guard yelled for a hotel

concierge to call the police. The guard then pursued Appellant and restrained

him until police arrived.

      On April 21, 2017, the court convicted Appellant of the offenses. The

court deferred sentencing for the completion of a presentence investigation

(“PSI”) report.   After reviewing the PSI, the court sentenced Appellant on

August 28, 2017, to an aggregate eight (8) to twenty (20) years’

imprisonment. On August 30, 2017, Appellant filed a post-sentence motion,

which was denied by operation of law on December 28, 2017. Appellant timely

filed a notice of appeal on January 4, 2018. The court did not order Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and none was filed.

      Appellant raises the following issue for our review:

         DID NOT THE [TRIAL] COURT ERR AND ABUSE ITS
         DISCRETION BY SENTENCING [APPELLANT] TO AN
         UNREASONABLE SENTENCE, WITHOUT GIVING ADEQUATE
         REASONS, ON THE BASIS OF CONSIDERATIONS,
         INCLUDING THE NATURE OF THE OFFENSE, HIS PRIOR
         CRIMINAL  HISTORY   AND   THE   DEADLY   WEAPON
         ENHANCEMENT, THAT WERE ALREADY FACTORED INTO THE
         SENTENCING GUIDELINES AND DID NOT THE [TRIAL]
         COURT FURTHER ERR BY FAILING TO GIVE PROPER
         CONSIDERATION    TO    [APPELLANT’S]   PERSONAL
         CIRCUMSTANCES AND MITIGATING FACTORS, AND AS A
         RESULT THE SENTENCE IS CONTRARY TO THE
         FUNDAMENTAL NORMS UNDERLYING THE SENTENCING
         PROCESS AND WAS MANIFESTLY UNREASONABLE AND

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         EXCESSIVE?

(Appellant’s Brief at 3).

      Appellant argues the sentencing court failed to consider either his

rehabilitative needs or certain mitigating factors, such as his background,

substance abuse, and mental health issues, when crafting his sentence.

Rather, Appellant contends the court focused almost entirely on elements

already taken into consideration by the sentencing guidelines, such as the

nature of the offense, his prior arrests and convictions, and the deadly weapon

enhancement.      Due to the improper “double-counting” of these elements

without considering the mitigating factors, Appellant maintains the sentencing

court imposed a manifestly unreasonable and excessive sentence. Appellant

concludes his sentence should be vacated and his case remanded for

resentencing.    As presented, Appellant’s claims challenge the discretionary

aspects of his sentence. See Commonwealth v. Anderson, 830 A.2d 1013

(Pa.Super. 2003) (stating claim that court considered improper factors at

sentencing refers to discretionary aspects of sentencing); Commonwealth v.

Lutes, 793 A.2d 949, 964 (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).


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         Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

           We 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).

Objections to the discretionary aspects of a sentence are waived if they are

not raised at the sentencing hearing or in a timely filed post-sentence motion.

Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied,

621 Pa. 682, 76 A.3d 538 (2013).

         When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by 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, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The requirement that an appellant separately set forth the reasons

relied upon for allowance of appeal furthers the purpose evident in the


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Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision to

exceptional cases.”     Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert.

denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting

Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en

banc)) (emphasis in original) (internal quotation marks omitted).

     “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Anderson, supra at 1018. 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 913 (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

     A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question will be found “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates


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either a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process….”

Id. Nevertheless, “[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)).      See   also

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining

allegation that sentencing court failed to consider specific mitigating factor

generally does not raise substantial question; claim that sentencing court

ignored appellant’s rehabilitative needs failed to raise substantial question).

Further, where the sentencing court had the benefit of a PSI, the law assumes

the court was aware of and weighed relevant information regarding mitigating

factors. Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005).

      Instantly, Appellant failed to raise his claim, concerning the court’s

improper double-counting of certain sentencing factors, either at the

sentencing hearing or in his post-sentence motion. Consequently, this claim

is waived. See Griffin, supra. Appellant properly preserved his remaining

sentencing   complaints.       Nevertheless,   Appellant’s   bald   allegation   of

excessiveness does not warrant review.         See Mouzon, supra.       Likewise,

Appellant’s assertion that the court failed to consider mitigating factors, such

as his background, substance abuse, and mental health issues, does not pose


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a substantial question. See Berry, supra; Cruz-Centeno, supra. Here, the

court had the benefit of a PSI report. Therefore, we can presume the court

was aware of the relevant information regarding mitigating circumstances.

See Tirado, supra.        Thus, Appellant is not entitled to relief on his

discretionary aspects of sentencing claims.    Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/20




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