J-S68004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KAIRI HARRIS,

                            Appellant                  No. 1662 EDA 2013


      Appeal from the Judgment of Sentence entered January 28, 2013,
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0000498-2012


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED NOVEMBER 14, 2014

       Kairi Harris (“Appellant”) appeals from the judgment of sentence

entered after a jury found him guilty of attempted murder, aggravated

assault, conspiracy to commit murder, conspiracy to commit aggravated

assault, possession of a firearm by a prohibited person, possession of a

firearm without a license, carrying a firearm in public in Philadelphia, and

possession of an instrument of crime.1

       The trial court detailed the pertinent facts as follows:

             [Appellant] and his cousin were sitting outside
       [Appellant’s] house at 441 E. Rittenhouse Street in Philadelphia
       on the afternoon of December 23, 2011. While they were sitting
       on the porch, Durrell Hall and Samuel Evans drove by
       [Appellant’s] house in a vehicle. When their vehicle reached the
____________________________________________


1
 18 Pa.C.S.A. §§ 901(a), 2502(a), 2702(a); 903, 6105(a), 6106(a)(1),
6018, and 907(a).
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     stop sign directly in front of [Appellant’s] house, [Appellant] and
     his cousin opened fire at Hall and Evans who were inside the
     vehicle. As the vehicle sped away eastbound on Morton Street,
     [Appellant] and his cousin continued to fire at the vehicle. Hall
     and Evans were sitting in the front seats of the vehicle.
     [Appellant] and his cousin fired a total of 12 shots from two
     guns: ten .40 caliber rounds and two 9 millimeter rounds.

           At least one of the bullets did not hit the intended victims
     or the vehicle. Instead, this stray bullet sailed halfway down the
     block and entered the second floor window of the residence of
     Gwendolyn Knox, who lived at 5817 Morton Street. Knox was in
     her upstairs bedroom watching over a one-year old child when
     she heard the gunshots. As Knox sat up in her bed, the stray
     bullet struck her in her face. The bullet entered Knox’s jaw,
     travelled through her head and neck, and ultimately lodged in
     her spine. Police officers carried Knox down her steps in a bed
     sheet and rushed her to the Albert Einstein Medical Center.
     Knox entered the hospital in critical condition, and she spent
     nearly two weeks there in recovery. Knox suffered fractured
     vertebrae at the base and center of her neck, painful and
     permanent nerve damage, a broken jaw in two places, a severed
     artery in her neck, and a non-paralytic stroke. Doctors placed a
     stent in her neck to repair her severed artery. Doctors removed
     the bullet ten months later. Knox still receives therapeutic
     services as a result of her injuries.

           Immediately after the shooting, [Appellant] and his cousin
     ran into [Appellant’s] house. A few minutes later, a car pulled
     up to [Appellant’s] house and picked up both [Appellant] and his
     cousin who then fled the scene of the shooting.

                                     ...

        Otis Thompson was the only eyewitness who testified at trial.
     Thompson knew [Appellant], his cousin, and the intended
     shooting victims (Durrell Hall and Samuel Evans) from previous
     encounters in the neighborhood over the past fifteen years.
     Thompson never had a problem with [Appellant] or his cousin,
     and in fact, considered them as friends. At the time of the
     shooting, Thompson was sitting across the street by a statue and
     observed the entire shooting from the beginning (Hall and Evans
     driving towards [Appellant’s] house) to the end ([Appellant] and
     his cousin getting into a car and fleeing the scene).        The

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     shooting occurred in broad daylight, and nothing obstructed
     Thompson’s view of the shooting.

       At trial, Thompson testified that:

          He heard 12 shots, which was the exact same number of
           fired cartridge cases recovered by detectives at the scene.

          One week before the shooting, [Appellant] showed
           Thompson a 9 mm Taurus gun, which was the same
           caliber as two of the fired cartridge cases recovered from
           the scene of the shooting.

          Around the time of the shooting, males from Mechanic
           Street were “beefing” with the males from Rittenhouse
           Street because Durrell Hall (one of the intended shooting
           victims in the vehicle) owed money to [Appellant].


        A few hours after the shooting on December 23, 2011,
     Thompson was arrested for illegally possessing a gun.
     Approximately 12 hours after the shooting and while he was in
     custody for his own gun case, Thompson gave a statement to
     detectives implicating [Appellant] and [Appellant’s] cousin in the
     shooting. Thompson testified that the District Attorney’s office
     and detectives made no promises to him in exchange for any of
     his statements to detectives or his testimony in court. Following
     Thompson’s statement, detectives said they would try to move
     Thompson to a different county prison due to Thompson’s
     concern regarding witness intimidation. On the date he was
     arrested for his gun case, Thompson was on probation for
     another gun case. The parties stipulated that the gun allegedly
     possessed by Thompson on the night of December 23, 2011,
     was not the same caliber of gun as the 12 fired cartridge casings
     recovered from the shooting.
                                     ...

           While [Appellant] was incarcerated, [Appellant] made
     numerous phone calls from the prison, which were recorded and
     introduced as evidence at trial. Among other things, [Appellant]
     made phone calls attempting to locate Thompson in the prison
     system and describing threats made from the audience to
     Thompson during the preliminary hearing. Among other things



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      captured on audiotape, [Appellant] was upset that Thompson
      was talking to the detectives....

Trial Court Opinion, 1/2/14, at 1-4 (emphasis in original) (footnotes and

citations to notes of testimony omitted).

      Appellant was charged with the aforementioned crimes, and a jury trial

commenced on November 6, 2012. The jury returned its guilty verdicts on

November 9, 2012.

      On January 28, 2013, following a hearing, the trial court sentenced

Appellant to 25 to 50 years of imprisonment. Appellant filed post-sentence

motions on January 30, 2013, which the trial court denied on May 17, 2013.

Appellant filed a notice of appeal on June 6, 2013. Both Appellant and the

trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. DID THE COMMONWEALTH PROVE BEYOND A REASONABLE
         DOUBT THE ELEMENT OF EACH CRIME THAT APPELLANT
         WAS CONVICTED OF?

      2. WAS APPELLANT’S CONVICTION AGAINST THE WEIGHT OF
         THE EVIDENCE?

      3. DID THE TRIAL COURT ISSUE A GREATER SENTENCE THAN
         NECESSARY?

Appellant’s Brief at 3.

      In his first issue, Appellant argues that the evidence was insufficient to

support the guilty verdicts. Appellant’s Brief at 18-27.

            Our standard when reviewing the sufficiency of the
      evidence is whether the evidence at trial, and all reasonable
      inferences derived therefrom, when viewed in the light most

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     favorable to the Commonwealth as verdict-winner, are sufficient
     to establish all elements of the offense beyond a reasonable
     doubt.     We may not weigh the evidence or substitute our
     judgment for that of the fact-finder. Additionally, the evidence
     at trial need not preclude every possibility of innocence, and the
     fact-finder is free to resolve any doubts regarding a defendant's
     guilt 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. When evaluating the credibility and
     weight of the evidence, the fact-finder is free to believe all, part
     or none of the evidence. For purposes of our review under these
     principles, we must review the entire record and consider all of
     the evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).

     Appellant was found guilty of attempted murder, conspiracy to commit

murder, aggravated assault, conspiracy to commit aggravated assault, three

violations of the Uniform Firearms Act, and possession of an instrument of

crime.

     With regard to his convictions for attempted murder and aggravated

assault, Appellant argues that the testimony of Mr. Thompson was not

sufficient to support his convictions.    Appellant’s Brief at 19-21.       We

disagree.

     “A person commits an attempt when with intent to commit a specific

crime, he does any act which constitutes a substantial step towards the

commission of the crime.”     18 Pa.C.S.A. § 901(a).      “A person may be

convicted of attempted murder ‘if he takes a substantial step toward the

commission of a killing, with the specific intent in mind to commit such an

act.’” Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008)


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(citations omitted).    “The substantial step test broadens the scope of

attempt liability by concentrating on the acts the defendant has done and

does not any longer focus on the acts remaining to be done before the actual

commission of the crime.” In re R.D., 44 A.3d 657, 678 (Pa. Super. 2012)

(citations omitted). “The mens rea required for first-degree murder, specific

intent to kill, may be established solely from circumstantial evidence. [T]he

law permits the fact finder to infer that one intends the natural and probable

consequences of his acts[.]”      Jackson, 655 A.2d at 444 (citations and

internal quotations omitted).

      Here, in order to sustain the aggravated assault conviction, the

Commonwealth was required to demonstrate that Appellant “attempt[ed] to

cause serious bodily injury to another, or caused such injury intentionally,

knowingly   or    recklessly    under    circumstances   manifesting   extreme

indifference to the value of human life.” 18 Pa.C.S.A. § 2702(1(a)(1). With

regard to Appellant’s convictions for attempted murder and aggravated

assault, the doctrine of “transferred intent” which has been codified in this

Commonwealth, provides:

      (b)   Divergence between result designed or contemplated and
            actual result.—When intentionally or knowingly causing a
            particular result is an element of an offense, the element is not
            established if the actual result is not within the intent or the
            contemplation of the actor unless:

            (1)   the actual result differs from that designed or
                  contemplated as the case may be, only in the respect that
                  a different person or different property is injured or
                  affected or that the injury or harm designed or

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                 contemplated would have been more serious or more
                 extensive than that caused; or

           (2)   the actual result involves the same kind of injury or harm
                 as that designed or contemplated and is not too remote or
                 accidental in its occurrence to have a bearing on the
                 actor's liability or on the gravity of his offense.

18 Pa.C.S.A. § 303(b).

     The trial court, finding the evidence sufficient to support Appellant’s

attempted murder conviction, explained:

            [T]he evidence of record establishes that [Appellant] and
     his cousin fired 12 shots at two intended victims, Hall and Evans.
     They pumped 12 shots into the vehicle in broad daylight from a
     few feet away and didn’t stop shooting until it sped away. The
     bullets hit the front passenger side window, the passenger side
     panel, and the rear of the vehicle. Given, inter alia, the firing of
     two guns in close proximity to the vehicle, the location of where
     the bullets entered the vehicle (i.e. where the intended victims
     Hall and Evans were seated), the number of shots fired (i.e.
     more than necessary to simply injure a person), and that the
     shooting only ended because the vehicle fled the scene, there is
     sufficient evidence to prove beyond a reasonable doubt that
     [Appellant] specifically intended to commit a murder and that he
     committed a substantial act to complete that crime. Although
     his intended victims Hall and Evans were not injured,
     [Appellant’s] intent transferred to his ultimate victim, Gwendolyn
     Knox.

           [Appellant’s] specific intent to kill is corroborated by his
     phone conversations, which were taped and admitted into
     evidence. Specifically, [Appellant’s] statements demonstrate his
     consciousness of guilt as well as his intent, motive, and malice
     underlying both the shooting and his attempts to locate and
     intimidate Thompson.

            Moreover, the jury obviously found Thompson’s testimony
     as credible, which was reasonable given that his testimony
     regarding the number of shots fired was corroborated by the
     actual physical evidence recovered at the scene, i.e., 12 fired
     cartridge casings. Thompson not only never wavered on the

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      identity of [Appellant] as one of the shooters, but also testified
      that [Appellant] showed him a handgun a week before the
      shooting that was of the same caliber as two of the fired
      cartridge casings recovered from the scene. Thompson testified
      that [Appellant] and the intended victims were “beefing” over
      money owed by one of the intended victims to [Appellant]. Last,
      notwithstanding the substantial lines of impeachment and
      potential bias that were the focus of Thompson’s cross-
      examination, such arguments were not availing with the jury.

            Most telling of all the evidence that supports the credibility
      of Thompson’s testimony are [Appellant’s] own words:
      [Appellant] repeatedly stated that Thompson was “telling” and
      was “ratting.” The jury presumably found as reasonable the
      prosecutor’s suggested inference that [Appellant’s] words
      indicated that Thompson was “telling” the truth. In other words,
      if [Appellant] thought that Thompson a lying, then presumably
      he would have said, “Why is Thompson lying? Why is he making
      this up.”

             Thus, in light of the overwhelming evidence introduced at
      trial, there was sufficient evidence at trial to support
      [Appellant’s] conviction for attempted murder. [F.N. 2. Because
      there was sufficient evidence of the attempted murder, there is
      also sufficient evidence of the aggravated assault conviction.]

Trial Court Opinion, 1/2/14 at 5-7 (citation to case law omitted).

      Our review of the record supports the trial court’s determination that

the evidence was sufficient to support Appellant’s attempted murder

conviction, as well as his aggravated assault conviction.       Otis Thompson

testified credibly at trial that on December 23, 2011, Appellant and his

cousin were standing on the sidewalk in front of 441 E. Rittenhouse Street

when the victims drove past them in an SUV whereupon Appellant and his

cousin both began shooting at the intended victims’ car, and continued

shooting as the car drove away.        N.T., 11/7/12, at 54-55, 60-61.       Mr.


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Thompson additionally testified that in the week prior to the shooting,

Appellant had shown him a Taurus 9 mm handgun.            Id. at 42-43, 46-48.

Mr. Thompson’s testimony was bolstered by additional testimony by

Commonwealth witnesses that 9 mm cartridge casings were found outside

441 E. Rittenhouse Street, and by the evidence of Appellant’s recorded

telephone conversations criticizing Mr. Thompson for telling on him.

Moreover, the Commonwealth presented evidence that Gwendolyn Knox

suffered a gunshot injury to her face and neck on December 23, 2013 at

approximately 2:50 p.m., the same time that Appellant was seen firing a

weapon down the street in the direction of 5817 Morton Street where Ms.

Knox resided. N.T., 11/6/12 at 62-65; 92. The Commonwealth presented

evidence that the bullet that struck Ms. Knox travelled into her home

through a second floor window, entering her jaw. N.T., 11/8/12, at 184.

As a result of the gunshot injury, Ms. Knox suffered damage to her carotid

artery, cervical vertebrae, bleeding of the brain, hypertension, and a non-

paralytic stroke. Id. at 78. We agree with the trial court that the foregoing

evidence   and   testimony   was   sufficient   to   support   both   Appellant’s

attempted murder and aggravated assault convictions.

     Additionally, the trial court found the evidence sufficient to sustain

Appellant’s conspiracy convictions. In order to sustain a criminal conspiracy

conviction, the Commonwealth must prove: “(1) an intent to commit or aid

in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt


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act in furtherance of the conspiracy.        Because it is difficult to prove an

explicit or formal agreement to commit an unlawful act, such an act may be

proved inferentially by circumstantial evidence, i.e., the relations, conduct

or circumstances of the parties or overt acts on the part of the co-

conspirators.” Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super.

2013) (citations omitted). Here, the evidence was sufficient to support the

conviction. As the trial court explained:

            As summarized above, [Appellant] and his cousin: (1)
      both fired guns at the same vehicle from the same location; (2)
      both continued firing at the passengers as the vehicle sped
      away; (3) both ran into [Appellant’s] house after the shooting;
      and (4) both exited the house and fled the scene in the same
      vehicle. Therefore, there was sufficient evidence at trial to
      support [Appellant’s] convictions for criminal conspiracy to
      commit murder and aggravated assault.

Trial Court Opinion, 1/2/14 at 7.    We agree with the trial court that this

evidence was sufficient to support Appellant’s conspiracy convictions.

      With regard to Appellant’s remaining convictions for violating the

uniform firearms act and possessing an instrument of crime, we find no error

in the trial court’s determinations that the evidence was sufficient to support

those convictions.

      18 Pa.C.S.A. § 6105(a) of the Uniform Firearms Act prohibits a person

who has been convicted of certain offenses enumerated in § 6105(b) or

whose conduct meets the criteria enumerated in subsection § 6105(c), from

possessing a firearm in this Commonwealth.




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      18 Pa.C.S.A.§ 6106(a)(1) provides: “any person who carries a firearm

in any vehicle or any person who carries a firearm concealed on or about his

person, except in his place of abode or fixed place of business, without a

valid and lawfully issued license under this chapter commits a felony of the

third degree.”

      18 Pa.C.S.A. § 6108 provides:

      No person shall carry a firearm, rifle or shotgun at any time
      upon the public streets or upon any public property in a city of
      the first class unless:

      (1)      such person is licensed to carry a firearm; or

      (2)      such person is exempt from licensing under section
               6106(b) of this title (relating to firearms not to be carried
               without a license).

      Finally, to sustain a conviction for possession of an instrument of

crime,   the    Commonwealth       was    required   to   establish   that   Appellant

“possesse[d] any instrument of crime with intent to employ it criminally.”

18 Pa.C.S.A. § 907(a).

      The trial court, finding the evidence sufficient to sustain these

convictions explained:

            [T]he sole eyewitness, Otis Thompson, testified that
      [Appellant] possessed a firearm and fired it several times at a
      vehicle.   This evidence is sufficient to find that [Appellant]
      possessed an operable firearm even though no firearm was
      recovered.    Indeed, Pennsylvania caselaw provides that the
      elements of possession and operability of a firearm may be
      established by the testimony of witnesses who observed the
      defendant with a firearm. Commonwealth v. Robinson, 817
      A.2d 1153, 1161 (Pa. Super. 2013) ... Last, both counsel



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     stipulated that [Appellant] was prohibited from possessing a
     firearm under Section 6105.

            For these reasons, there is sufficient evidence to sustain
     the conviction under 6105. For similar reasons, there is also
     sufficient evidence to support [Appellant’s] convictions under
     Section 6106 and 6108, i.e., [Appellant] was on a public street
     in Philadelphia when Thompson observed [Appellant] possess a
     firearm without a license.

Trial Court Opinion, 1/2/14 at 8-9.    Again, we find no error in the trial

court’s determination.

     Appellant next argues that the verdict was against the weight of the

evidence.   Our scrutiny of whether a verdict is against the weight of the

evidence is governed by the principles set forth in Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted):

           The weight of the evidence is exclusively for the finder of
     fact who is free to believe all, part, or none of the evidence and
     to determine the credibility of the witnesses. An appellate court
     cannot substitute its judgment for that of the finder of fact.
     Thus, we may only reverse the lower court's verdict if it is so
     contrary to the evidence as to shock one's sense of justice.

           Moreover, where the trial court has ruled on the weight
     claim below, an appellate court's role is not to consider the
     underlying question of whether the verdict is against the weight
     of the evidence. Rather, appellate review is limited to whether
     the trial court palpably abused its discretion in ruling on the
     weight claim.


     In his weight of the evidence claim, Appellant challenges the credibility

of Mr. Thompson. Appellant’s Brief at 27-29. Specifically, Appellant argues

that Mr. Thompson was motivated to testify in the hope of securing a

favorable outcome in his own criminal proceedings, and additionally, that it


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was possible that Mr. Thompson had been smoking marijuana at the time he

implicated Appellant in the shooting of Gwendolyn Knox. Id.

       “Where issues of credibility and weight are concerned, it is not the

function of an appellate court to substitute its judgment for that of the trial

court. A new trial is warranted on a challenge to the weight of the evidence

only if the verdict is so contrary to the evidence as to shock one's sense of

justice. Furthermore, issues of credibility are left to the trier of fact; the jury

is   free   to   accept   all,   part,   or   none   of   the   witness   testimony.”

Commonwealth v. Russell, 665 A.2d 1239, 1246-1247 (Pa. Super. 1995)

(citations omitted).      Here, the jury was informed that Mr. Thompson was

arrested on December 23, 2011, and was aware that he was charged with

possession of marijuana and carrying a firearm without a license.               N.T.,

11/7/12, at 66. Moreover, Mr. Thompson was subjected to extensive cross-

examination by Appellant in an effort to expose any improper motives

regarding his providing testimony in exchange for favorable treatment in his

own criminal proceeding. N.T., 11/8/12, at 15-55. However, “[q]uestions

concerning improper motive go to the credibility of the witnesses.”

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citations

omitted).    The jury, which, was free to believe all, some or none of the

evidence, found credible Mr. Thompson’s testimony that Appellant was the

shooter, notwithstanding Mr. Thompson’s admission that he                    smoked

marijuana and that he hoped for more favorable treatment in his own

criminal proceeding as a result of his testimony. “An appellate court cannot

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substitute its judgment for that of the jury on issues of credibility.”        Id.

Given the foregoing, we conclude that the trial court did not abuse its

discretion in rejecting Appellant’s challenge to the weight of the evidence.

      In his third issue, Appellant argues that the trial court abused its

discretion when it sentenced him to 25 to 50 years of imprisonment.             A

challenge to the discretionary aspects of a sentence is not appealable as of

right. Rather, Appellant must petition for allowance of appeal pursuant to 42

Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.

Super. 2004).
           Before we reach the merits of this [issue], 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. The third and fourth of
     these requirements arise because Appellant's attack on his
     sentence is not an appeal as of right. Rather, he must petition
     this Court, in his concise statement of reasons, to grant
     consideration of his appeal on the grounds that there is a
     substantial question. Finally, if the appeal satisfies each of these
     four requirements, we will then proceed to decide the
     substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

      Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal.   Appellant has additionally included in his brief a

concise statement pursuant to Pa.R.A.P. 2119(f).      See Appellant’s Brief at



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29-30. Therefore, we proceed to determine whether Appellant has raised a

substantial question for our review.

      Appellant argues that in imposing a sentence of 25 to 50 years of

imprisonment, the trial court failed to appropriately consider the statutory

factors set forth in 42 Pa.C.S.A. § 9781(d), and the sentencing standards

outlined in 42 Pa.C.S.A. § 9721(b).       Specifically, Appellant claims that the

trial court failed to consider Appellant’s history, and in particular the fact

that his only other violent offense occurred in 2003, almost 9 years prior to

the instant case.    Accordingly, Appellant asserts that the sentence was

excessive.

      “[A]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas

a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272 n. 8 (Pa. Super.

2013). While Appellant frames his argument by stating that the sentencing

court failed to consider certain statutory factors, in substance Appellant

asserts the court failed to appropriately weigh mitigating facts of record, in

particular that Appellant did not have a significant criminal record for violent

offenses. Such claims that the trial court failed to consider facts of record do




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not constitute a substantial question.      Therefore, we deny Appellant’s

discretionary aspects claim.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




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