J-A14028-18


                                2018 PA Super 230

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 QUADIR EDWARDS                           :
                                          :
                    Appellant             :   No. 2433 EDA 2016

          Appeal from the Judgment of Sentence June 23, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0001191-2015



BEFORE:    GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

OPINION BY SHOGAN, J.:                              FILED AUGUST 16, 2018

      Appellant, Quadir Edwards, appeals from the June 23, 2016 judgment

of sentence entered in the Court of Common Pleas of Philadelphia County

following a bench trial. We affirm.

      In reliance on the testimony at the suppression hearing, the trial court

summarized the facts of the crime as follows:

             On January 20, 2015 at approximately 1:20 a.m., officers
      were traveling on a routine patrol southbound on the 3500 block
      of Kensington Avenue. N.T. 3/14/16 at 5-6. Officer Kellar
      testified that while he was the recorder (passenger) in the patrol
      car, he noticed a “black male limping in the bike lane on the west
      side of the street.” Id. When [Appellant] was observed, he was
      heading towards the patrol car about twenty feet away. Id. at 6-
      7. As [Appellant] got closer to the vehicle, Officer Kellar noticed
      that [Appellant] had “blood coming down the left side onto the
      white long johns.” Id. at 7-8.

           After noticing the blood on [Appellant’s] leg, Officer Kellar
      attempted to get [Appellant’s] attention, but [he] ignored the
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A14028-18


     officer and kept “limping at a fast pace.” Id. at 8. [Appellant]
     continued to ignore the officers as they reversed their vehicle and
     tried to talk to [Appellant]. Id. at 9. Officer Kellar exited the
     vehicle and told [Appellant] to stop multiple times. Id. at 9.
     Eventually, [Appellant] stopped and faced Officer Kellar. Id.
     However, [Appellant] continued to back away from the officers,
     even after he was informed that they were only interested in
     bringing him to the hospital for his leg injury. Id. at 10.
     [Appellant] told the officer that he was shot; “He said a Hispanic
     male around the corner shot him and that we should go look for
     him.” Id. As Officer Kellar approached [Appellant], he noticed
     that [Appellant] was reaching for his right jacket pocket while
     backing away.       Id. 10–11.     Based on his observations of
     [Appellant] and his three and a half years of experience as an
     officer, Officer Kellar believed that [Appellant] was hiding
     something in his right jacket pocket that he did not want him to
     find.4 Id. at 12–13. Officer Kellar testified that this area was a
     high crime area known for “drug sales, stabbings, shootings, and
     robberies.” Id. at 13. Once [Appellant] reached into his jacket,
     Officer Kellar stopped him and frisked the outer layer of
     [Appellant’s] clothing. Id. at 14. On the right jacket pocket, Office
     Kellar felt a hard object which he immediately knew was a gun.5
     Id. [Appellant] was then placed in handcuffs and transported to
     Temple Hospital because of the wound on his left leg. Id. at 16–
     17. While en route to the hospital, there was a flash6 sent out
     concerning a “black male wearing a black North Face jacket with
     a white hood underneath it.” Id. at 22. [Appellant] was wearing
     “a black jacket with a white hood underneath it.” Id.

           4
            Officer Kellar: “At that time, like I said, I believed he
           was reaching for something, you know, possibly a
           weapon, possibly, you know, drugs in his pocket to
           get rid of it.” Id. at 14.

           5
             The gun “was loaded with 12 rounds, and there was
           a spent shell casing that was jammed inside the
           chamber of the gun... There was no bullet in the gun.
           The casing that holds the bullet was still jammed
           inside the gun. So, essentially, if you were to fire a
           handgun and nothing were to restrict the slide from
           going back, that spent shell casing would eject from
           the handgun.        But in this case, through my
           experience, it would indicate that that slide did not
           fully go all the way back, which would mean it would

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J-A14028-18


           jam the spent shell casing inside. But the bullet, itself,
           was fired.” Id. at 22–23.

           6
             There was no objection to this testimony by defense
           counsel. Officer Cunningham eventually testified that
           the flash information was for a man who was shot. Id.
           at 38.

            Next, Officer Cunningham was called by defense counsel7 to
     testify. Id. at 30. Officer Cunningham testified that his partner,
     Officer Kellar, alerted him as to [Appellant] who was walking down
     the street towards them and bleeding from his leg. Id. at 31–32.
     When [Appellant] was invited to get into the car to be taken to
     the hospital, he insisted that the officers get the Hispanic male
     who shot him while he was involved in a robbery. Id. at 32. When
     Officer Cunningham was approaching [Appellant], Officer Kellar
     was already recovering a gun from [Appellant]. Id. Officer
     Cunningham also testified that in one of his reports he said, “[T]he
     male walked up to us and stated that he got shot and told us to
     get the doer.” Id. at 34-35. This statement was what his partner
     told him because he did not actually interact with [Appellant] while
     he was driving the car, but he did see the blood on his leg. Id. at
     35-36.

           7
               Officer   Cunningham       was     called   with
           Commonwealth’s objection because defense counsel
           had not subpoenaed the officer as her witness. Id. at
           29–30.

           [Appellant] was arrested after he was treated in the
     hospital. Id. at 39. There was no testimony that [Appellant]
     indicated that he did not want aid from the police. Id. at 57. After
     an investigation,8 it was found that [Appellant] shot himself in the
     leg. N.T. 6/23/16, at 18.

           8
             The results of the investigation were not given at
           trial, but defense counsel did not object to its
           admission during sentencing. Id. at 18.




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Trial Court Opinion, 5/23/17, at 2–4.1

       The trial court summarized the procedural history as follows:

             On January 20, 2015, [Appellant] was arrested and charged
       with: 1) Carrying a Firearm without a License and; 2) Carrying a
       Firearm in Public in Philadelphia.

              On March 14, 2015, [Appellant] proceeded with a waiver
       trial before this [c]ourt and was found guilty for both of the
       charges against him.

             On June 23, 2016, [Appellant] was sentenced to: 1)
       Carrying [a firearm] without a License—two (2) to four (4) years
       incarceration at CSI Chester with anger management, drug
       treatment and vocational training followed by three years
       reporting probation to run consecutively to the Carrying in Public
       charge; 2) Carrying in Public—one (1) to two (2) years
       [incarceration followed by two years] reporting probation to run
       consecutively for the Carrying without a License charge. Id. at
       53-54.

            On July 11 2016, [Appellant’s] post-sentence motion was
       denied.[2]

Trial Court Opinion, 5/23/17, at 1–2 (footnotes omitted). Appellant filed a

timely notice of appeal; both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

       1. Did not the court err in denying the [Appellant’s] motion to
          suppress evidence in that the [Appellant] was stopped in the
          absence of reasonable suspicion or probable cause, and all
          evidence subsequently obtained by [Appellant] was fruit of this
          illegal stop?
____________________________________________


1
  The was no testimony at the suppression hearing that the police activated
their emergency lights when they encountered Appellant.

2
    The docket indicates the motion was denied on July 7, 2016.

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J-A14028-18


      2.A. Did not the court err by taking into account as part of its
         sentencing determination the fact that [Appellant’s] mother did
         not testify on behalf of [Appellant] at sentencing, and then
         reaching conclusions from this observation which were adverse
         to [Appellant], since the reasons for the absence of such
         testimony were not necessarily adverse to [Appellant] and the
         court’s conclusions as to why [Appellant’s] mother did not
         testify could only be speculative at best?

      2.B. Further, did not the court err when it refused to allow defense
         counsel to address the adverse conclusions reached by the
         court on account of the absence of a statement by [Appellant’s]
         mother, and did not the court thus violate due process by
         preventing [Appellant] from presenting evidence and/or
         argument at sentencing?

Appellant’s Brief at 4.

      Appellant’s first issue relates to the trial court’s denial of Appellant’s

suppression motion, and the second and third issues relate to his sentence.

The standard of review we apply when considering an order denying a

suppression motion is settled:

      An appellate court may consider only the Commonwealth’s
      evidence and so much of the evidence for the defense as remains
      uncontradicted when read in the context of the record as a whole.
      Commonwealth v. Russo, 594 Pa. 119, 934 A.2d 1199, 1203
      (2007) (citing Commonwealth v. Boczkowski, 577 Pa. 421,
      846 A.2d 75 (2004)). Where the record supports the factual
      findings of the trial court, the appellate court is bound by those
      facts and may reverse only if the legal conclusions drawn
      therefrom are in error. Id. However, it is also well settled that
      the appellate court is not bound by the suppression court’s
      conclusions of law. Id. (citing Commonwealth v. Duncan, 572
      Pa. 438, 817 A.2d 455 (2003)).

                   With respect to factual findings, we are mindful
            that it is the sole province of the suppression court to
            weigh the credibility of the witnesses. Further, the
            suppression court judge is entitled to believe all, part
            or none of the evidence presented. However, where


                                     -5-
J-A14028-18


            the factual determinations made by the suppression
            court are not supported by the evidence, we may
            reject those findings. Only factual findings which are
            supported by the record are binding upon this Court.

      Commonwealth v. Benton, 440 Pa. Super. 441, 655 A.2d 1030,
      1032 (1995) (citations omitted). In addition, we are aware that
      questions of the admission and exclusion of evidence are within
      the sound discretion of the trial court and will not be reversed on
      appeal absent an abuse of discretion. Commonwealth v. Freidl,
      834 A.2d 638, 641 (Pa. Super.2003).

Commonwealth v. Nguyen, 116 A.3d 657, 663–664 (Pa. Super. 2015).

      Appellant argues the trial court erred in failing to suppress evidence

because the police stopped Appellant without reasonable suspicion or probable

cause.   Appellant’s Brief at 18.   He contends the Commonwealth failed to

present evidence at the suppression hearing to prove that exigent

circumstances “in the cloak of the emergency aid doctrine” existed, which

would excuse the absence of reasonable suspicion or probable cause, at the

time police stopped Appellant. Appellant’s Brief at 17.

      The three levels of interaction between citizens and police are: mere

encounter, investigative detention, and custodial detention.

      A mere encounter can be any formal or informal interaction
      between an officer and a citizen, but will normally be an inquiry
      by the officer of a citizen. The hallmark of this interaction is that
      it carries no official compulsion to stop or respond.

      In contrast, an investigative detention, by implication, carries an
      official compulsion to stop and respond, but the detention is
      temporary, unless it results in the formation of probable cause for
      arrest, and does not possess the coercive conditions consistent
      with a formal arrest. Since this interaction has elements of official
      compulsion[,] it requires reasonable suspicion of unlawful activity.
      In further contrast, a custodial detention occurs when the nature,


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J-A14028-18


       duration and conditions of an investigative detention become so
       coercive as to be, practically speaking, the functional equivalent
       of an arrest.

Nguyen, 116 A.3d at 664 (quoting Commonwealth v. DeHart, 745 A.2d

633, 636 (Pa. Super. 2000) (internal citations and quotation marks omitted)).

       Our Supreme Court recently expounded upon the community caretaker

doctrine3 in Commonwealth v. Livingstone, 174 A.3d 609, 634 (Pa. 2017),

addressing for the first time “the public service or the emergency aid

exceptions under the community caretaking doctrine.”4,5       Noting that the

United States Supreme Court first recognized a community caretaking

exception to the warrant requirement in Cady v. Dombrowski, 413 U.S. 433

(1973), the Pennsylvania Supreme Court explained that the doctrine

encompassed three specific exceptions: 1) the emergency aid exception; 2)

the automobile impoundment/inventory exception; and 3) the public servant

exception, “also sometimes referred to as the public safety exception.”



____________________________________________


3
    Our Supreme Court observed that it previously acknowledged the
“community care-taking functions” of police in Commonwealth v.
Lagenella, 83 A.3d 94 (Pa. 2013), but it had not previously addressed the
public service or the emergency aid exceptions. Livingstone, 174 A.3d at
627.

4
   We note that Appellant filed his brief in this case on October 27, 2017,
exactly one month before our Supreme Court filed its decision in Livingstone.
In addition, the trial court filed its opinion on May 23, 2017, more than six
months before the Court filed its decision in Livingstone.

5
  While each section of the opinion garnered different votes, we note that all
sections of Livingstone obtained a majority.

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J-A14028-18


Livingstone, 174 A.3d at 626–627. The Livingstone Court advised, “Each

of the exceptions contemplates that the police officer’s actions be

motivated by a desire to render aid or assistance, rather than the

investigation of criminal activity.” Id. at 627 (emphasis added). After

examining case law concerning the community caretaker doctrine from the

courts of more than twenty-five of our sister states, our Supreme Court

clarified that it “likewise recognize[d] that the role of police is not limited to

the detection, investigation, and prevention of criminal activity. Rather, police

officers engage in a myriad of activities that ensure the safety and welfare of

our Commonwealth’s citizens. Indeed, we want to encourage such laudable

activity.” Id. at 627–628, 629. In doing so, the Court quoted descriptions of

the doctrine offered by the Supreme Courts of Delaware and Tennessee, as

follows:

      The modern police officer is a “jack-of-all-emergencies,” with
      “‘complex and multiple tasks to perform in addition to identifying
      and apprehending persons committing serious criminal offenses’;
      by default or design he is also expected ‘to aid individuals who are
      in danger of physical harm,’ ‘assist those who cannot care for
      themselves,’ and ‘provide other services on an emergency basis.’”
      To require reasonable suspicion of criminal activity before police
      can investigate and render assistance in these situations would
      severely hamstring their ability to protect and serve the public.

Livingstone, 174 A.3d at 628–629 (quoting Williams v. State, 962 A.2d

210, 216 (Del. 2008)).

      Police officers wear many hats: criminal investigator, first aid
      provider, social worker, crisis intervener, family counselor, youth
      mentor and peacemaker, to name a few. They are charged with
      the duty to protect people, not just from criminals, but also from

                                      -8-
J-A14028-18


     accidents, natural perils and even self-inflicted injuries. We ask
     them to protect our property from all types of losses—even those
     occasioned by our own negligence. They counsel our youth. They
     quell disputes between husband and wife, parent and child,
     landlord and tenant, merchant and patron and quarreling
     neighbors. Although they search for clues to solve crime, they
     also search for missing children, parents, dementia patients, and
     occasionally even an escaped zoo animal. They are society’s
     problem solvers when no other solution is apparent or available.

Id. at 629 (quoting State v. McCormick, 494 S.W.3d 673, 686 (Tenn.

2016)).

     The Livingstone Court held as follows:

     [We] first hold that, in order for the public servant exception of
     the community caretaking doctrine to apply, police officers must
     be able to point to specific, objective, and articulable facts that
     would reasonably suggest to an experienced officer that a citizen
     is in need of assistance.

                                    * * *

           Second, we hold that, in order for the public servant
     exception of the community caretaking doctrine to apply, the
     police caretaking action must be independent from the detection,
     investigation, and acquisition of criminal evidence. As noted
     above, this is a common requirement to warrantless searches
     under all three exceptions of the community caretaking doctrine,
     including the emergency aid exception . . . .

                                    * * *

     [I]t is not realistic or wise to expect an officer to ignore the nature
     of his or her role in law enforcement—or its inherent dangers—in
     order for the public servant exception of the community
     caretaking doctrine to apply. Thus, so long as a police officer is
     able to point to specific, objective, and articulable facts which,
     standing alone, reasonably would suggest that his assistance is
     necessary, a coinciding subjective law enforcement concern by the
     officer will not negate the validity of that search under the public
     servant exception to the community caretaking doctrine.


                                      -9-
J-A14028-18


                                    * * *

             Finally, we hold that, in order for the public servant
      exception to apply the level of intrusion must be commensurate
      with the perceived need for assistance. . . . To summarize, in order
      for a seizure to be justified under the public servant exception to
      the warrant requirement under the community caretaking
      doctrine, the officer must point to specific, objective, and
      articulable facts which would reasonably suggest to an
      experienced officer that assistance was needed; the police action
      must be independent from the detection, investigation, and
      acquisition of criminal evidence; and, based on a consideration of
      the surrounding circumstances, the action taken by police must
      be tailored to rendering assistance or mitigating the peril.

Livingstone, 174 A.3d at 634–637.

      In the instant case, the trial court concluded that the police properly

stopped Appellant because they had a reasonable basis to believe that an

emergency existed. The trial court noted:

      [Police] observed [Appellant] limping down the street with blood
      running down his left leg. [Appellant] also admitted to being shot
      and there was blood coming from his left leg. N.T. at 7–8.
      Moreover, [Appellant] admitted to the officers that he was shot
      and the police should be looking for the shooter instead of trying
      to help him. The search of [Appellant’s] jacket was not primarily
      motivated by an intent to arrest and seize evidence.

Trial Court Opinion, 5/23/17, at 10. The trial court also concluded that there

was probable cause to arrest [Appellant]:

      [Appellant] was walking down the street at one o’clock in the
      morning, in a high crime area, with blood running down his leg.
      N.T. at 5–8. [Appellant] actually admitted to being shot. Id. at
      10. When [Appellant] was approached by the officers who were
      trying to give him medical aid, he kept blading his body away from
      the cops and reaching for his jacket pocket, a sign that he was
      hiding something from the police officer. Id. at 10-13.

Id.

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J-A14028-18


      Appellant maintains that the relevant cases containing circumstances

consistent with the emergency aid doctrine, where the warrant requirement

properly was set aside, had these common threads among them: there was

reason to believe that: 1) a true emergency existed which required fast action,

and 2) there was information to be gained by the warrantless acts of the police

to enable the police to meet the emergency.       Appellant’s Brief at 22–24.

Contrary to those similarities, Appellant argues here that the Commonwealth’s

evidence at the suppression hearing failed to satisfy either criterion. Id. at

24. Appellant avers that no emergency existed, and thus, he maintains he

was seized without reasonable suspicion or probable cause. Id. at 30.

      We disagree and conclude that police acted reasonably and pursuant to

the community caretaking doctrine when observing Appellant limping, with a

bloody leg, at 1:20 a.m., in that they approached and offered Appellant

medical assistance. N.T., 3/14/16, at 6–10. Indeed, as the Commonwealth

points out, “the officers would have been remiss in carrying out their duties

had they ignored a limping pedestrian who was bleeding from the leg at

1:20 a.m. in a neighborhood known to them for its high levels of shootings

and other violent crime.”   Commonwealth Brief at 12–13.        Examining the

criteria established in Livingstone to determine whether the public servant

exception of the community caretaking doctrine applied in this case, we

observe that Philadelphia Police Officer James Kellar identified specific,

objective, and articulable facts that would reasonably suggest to an


                                    - 11 -
J-A14028-18


experienced officer that a citizen was in need of assistance. Indeed, in his

reply brief, Appellant concedes that fact. Appellant’s Reply Brief at 6.

      Second, the police caretaking action was independent from the

detection, investigation, and acquisition of criminal evidence. The provision

of aid to Appellant and transportation to the hospital was independent of the

subsequent, contemporaneous concern that arose as Officer Kellar spoke to

Appellant, who “blade[d] his body away” from the officer as he “placed his

right hand into his right jacket pocket.” N.T., 3/14/16, at 11. We repeat the

Livingstone Court’s observation that “it is not realistic or wise to expect an

officer to ignore the nature of his or her role in law enforcement . . . [S]o long

as a police officer is able to point to specific, objective, and articulable facts

which, standing alone, reasonably would suggest that his assistance is

necessary, a coinciding subjective law enforcement concern by the officer will

not negate the validity of that search under the public servant exception to

the community caretaking doctrine.” Livingstone, 174 A.3d at 637. The

suppression testimony, which the trial court credited, was consistent; the sole

purpose of this police interaction with Appellant was to render aid. Initially,

Appellant was limping, bleeding and unresponsive. N.T., 3/14/16, at 10 (“I

saw blood coming from his leg. We were trying to figure out what happened

to him so we could give him medical attention or transport him to the

hospital.”). Once more, Appellant concedes that this criterion also was met in

this case. Appellant’s Reply Brief at 7.


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J-A14028-18


      Finally, we conclude the third criterion established in Livingstone was

fulfilled in that the level of intrusion was commensurate with the perceived

need for assistance. We are confident that police action herein was “tailored

to rendering assistance or mitigating peril.” Livingstone, 174 A.3d at 637.

Police merely stopped to offer aid. Appellant’s initial action in continuing to

limp forward as Officer Kellar called out does not reveal whether he merely

did not hear the officer or was attempting to avoid him. When Officer Kellar

approached Appellant, Appellant stated that he had been shot, he turned away

and reached for his pocket. N.T., 3/14/16, at 10–11. The officer was entitled

to conduct a safety frisk.

      Thus, we conclude that police herein reasonably acted pursuant to the

public service exception. What began as a mere encounter ripened into an

investigative detention. Therefore, the trial court properly denied Appellant’s

motion to suppress.

      We next consider Appellant’s sentencing claims, which challenge the

discretionary aspects of his sentence. Challenges to the discretionary aspects

of sentencing do not entitle an appellant to review as of right, and his

challenge in this regard is properly viewed as a petition for allowance of

appeal. See 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522

A.2d 17 (Pa. 1987); Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa.

Super. 2010).    An appellant challenging the discretionary aspects of his

sentence must satisfy a four-part test to invoke this Court’s jurisdiction.


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J-A14028-18


Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015).                We

evaluate: (1) whether Appellant filed a timely notice of appeal; (2) whether

Appellant preserved the issue at sentencing or in a motion to reconsider and

modify sentence; (3) whether Appellant’s brief includes a concise statement

of the reasons relied upon for allowance of appeal; and (4) whether the

concise statement raises a substantial question that the sentence is

appropriate under the Sentencing Code. Commonwealth v. Carrillo-Diaz,

64 A.3d 722, 725 (Pa. Super. 2013). An appellant must articulate the reasons

the   sentencing    court’s    actions    violated   the   Sentencing     Code.

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

      In the instant case, Appellant filed a timely appeal. However, Appellant

did not raise the issues in his post-sentence motion, and the Commonwealth

has asserted waiver of the claims.       Commonwealth Brief at 19, 25.      The

Commonwealth also maintains that Appellant failed to preserve the issues by

contemporaneous objection at the sentencing hearing. Id.

      In his reply brief, Appellant responds that he preserved the issues at the

sentencing hearing. Appellant’s Reply Brief at 9. It is true that when the trial

court acknowledged the presence of Appellant’s mother at the sentencing

hearing and noted that she did not “speak on behalf of [Appellant], defense

counsel attempted to “briefly address that” observation. N.T. (Sentencing),

6/23/16, at 51–52. The court declined the interruption and stated, “No, you

should have addressed it then. I’m doing my closing now with regard to the


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J-A14028-18


sentencing.” Id. at 52. Appellant filed an extensive post-sentence motion on

July 1, 2016. He did not assert any issue related to the trial court’s comments

about Appellant’s mother. Post-Sentence Motion, 7/1/16. At argument before

this Court, counsel admitted he failed to assert the issue in his post-sentence

motion.

      This Court has explained countless times the necessity to present issues

to the trial court first in order to preserve them for review. The Tejada Court

made clear, “for any claim that was required to be preserved, this Court

cannot review a legal theory in support of that claim unless that particular

legal theory was presented to the trial court.”    Tejada, 107 A.3d at 799

(quoting Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008)).

It is not just that an objection is made, but the theory in support of the

objection must be offered to the trial court so that it can rule upon it. Here,

defense counsel attempted to respond to the trial court’s observation but was

not permitted to do so. Thus, while it is preferential that the issue had been

proffered in the post-sentence motion, we will not find waiver under these

specific facts.

      Continuing, then, with our analysis of the four-part test to determine

whether to invoke this Court’s jurisdiction, we note that Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal.   Appellant’s Brief at 15–16.   Therefore, we consider whether the




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J-A14028-18


concise statement raises a substantial question that the sentence is

appropriate under the Sentencing Code.

      A determination as to whether a substantial question exists is made on

a case-by-case basis. Commonwealth v. Derry, 150 A.3d 987 (Pa. Super.

2016). This Court will grant the appeal “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.” Id. at 991

(citing Commonwealth v. Sierra, 752 A.2d 910, 912–913 (Pa. Super.

2000)).

      In his Rule 2119(f) statement, Appellant argues that the trial court relied

on an improper factor, Appellant’s mother’s failure to testify at sentencing, in

sentencing Appellant. Appellant’s Brief at 15. We conclude that Appellant has

raised a substantial question. See Commonwealth v. P.L.S., 894 A.2d 120,

127 (Pa. Super. 2006) (holding that a claim that the sentencing court

considered impermissible factors raises a substantial question).

      Our standard of review in sentencing appeals is well settled:

      Sentencing 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 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. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).


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      A sentencing judge has broad discretion in determining a reasonable

penalty, and appellate courts afford the sentencing court great deference, as

it is the sentencing court that is in the best position to “view the defendant’s

character, displays of remorse, defiance, or indifference, and the overall effect

and nature of the crime.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (citation omitted). When imposing a sentence, the sentencing court

must consider “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.” 42 Pa.C.S. § 9721(b). As we have

stated, “[A] court is required to consider the particular circumstances of the

offense and the character of the defendant.” Commonwealth v. Griffin, 804

A.2d 1, 10 (Pa. Super. 2002). In particular, the sentencing court should refer

to the defendant’s prior criminal record, his age, personal characteristics, and

his potential for rehabilitation. Id.

      Moreover, it is well settled that sentencing courts are not bound by the

Sentencing Guidelines; the Guidelines are merely advisory. Commonwealth

v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted).          The

sentencing court may deviate from the Sentencing Guidelines, because they

are one factor among many that the court must consider when imposing a

sentence. Id. (citation omitted). The sentencing court “may depart from the

[G]uidelines if necessary, to fashion a sentence which takes into account the

protection of the public, the rehabilitative needs of the defendant, and the


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gravity of the particular offense as it relates to the impact on the life of the

victim and the community.”           Id. (internal quotation marks and citation

omitted).

      In this case, the trial court had the benefit of a presentence investigation

report (“PSI”), which included a mental health evaluation. N.T. (Sentencing),

6/23/16, at 4–5. “Our Supreme Court has determined that where the trial

court is informed by a [PSI], it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has   been    so   informed,   its     discretion   should   not   be   disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009)

(citation omitted). “The sentencing judge can satisfy the requirement that

reasons for imposing sentence be placed on the record by indicating that he

or she has been informed by the [PSI]; thus properly considering and weighing

all relevant factors.” Id. (citing Commonwealth v. Fowler, 893 A.2d 758,

766-767 (Pa. Super. 2006)).

      At the sentencing hearing, the court made the following statement:

            The [c]ourt’s also taken into consideration that the mother
      is present, and the [c]ourt has watched the mother and has be
      [sic] observant of the mother, and the [c]ourt must take into
      consideration the fact that mom did not speak on behalf of
      [Appellant]. In fact, mom has looked away from [Appellant] and
      the [c]ourt for the whole proceeding of his presentation. At this
      period of time, the mother did dab her eyes with a tissue. The
      mother did not say anything positive with regard to [Appellant].

N.T. (Sentencing), 6/23/16, at 51.




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      Appellant asserts that the court drew an adverse inference from the

mother’s failure to speak on Appellant’s behalf at sentencing. Appellant’s Brief

at 31–32. Thus, he claims the court considered an improper sentencing factor.

In Part 2 of this issue, Appellant contends that the trial court’s denial at the

hearing of counsel’s attempt to address the court’s reference to Appellant’s

mother violated Appellant’s due process rights. Id. at 34.

      The Commonwealth avers that the trial court’s mention of Appellant’s

mother was “plainly insignificant in contrast with the numerous other, more

serious considerations taken into account . . . such as his repeated recidivism

and lack of remorse.”     Commonwealth Brief at 19.       The Commonwealth

underscores Appellant’s six arrests, “including three for crimes involving

firearms, and two convictions.” Id. at 20. The Commonwealth also points to

Appellant’s arrest in three separate cases after posting bail in the present

case. More specifically, “he was arrested and convicted for selling drugs based

on an April 2015 arrest occurring only two months after he posted bail.” Id.

      Moreover, the Commonwealth emphasizes that defense counsel

extensively argued that Appellant was “‘supported by his mother who is in the

room,’ that he ‘was living with his mother prior to being incarcerated on these

matters,’ and that ‘his mother is involved.’ Indeed, he continued to emphasize

his mother’s role in his supposed future rehabilitation. (‘[H]is mother’s here

supporting him’); (‘He has his mother who is here.’). . . .” Commonwealth

Brief at 21 (internal citations omitted). The Commonwealth posits that the


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trial court’s reference to Appellant’s mother also was to point out the support

she presented by being available to him “even though” she did not speak on

his behalf. The Commonwealth presents an extensive list of all of the factors

the court considered. Commonwealth Brief at 24. Moreover, Appellant, during

his allocution to the court, emphasized, inter alia, his family’s support, and he

specifically referenced his mother, brother, and sister.

      We do not find the trial court considered an improper factor in

sentencing Appellant.   First, as argued by the Commonwealth, there is no

question that the trial court was responding to defense counsel’s strenuous

and continual emphasis on Appellant’s allegedly significant family support.

N.T. (Sentencing), 6/23/16, at 8–9, 44. Appellant, as well, emphasized in his

allocution to the court that his mother was available to him as a support. Id.

at 48. Moreover, the trial court considered all of the factors that weighed on

the court’s decision:

      I heard the allocution of [Appellant]. The [c]ourt has listened to
      the presentation by . . . counsel for [Appellant], as well as heard
      the Commonwealth’s presentation. The [c]ourt has reviewed the
      presentencing report as well as the mental health evaluation
      attached thereto. The [c]ourt has reviewed his own notes of how
      the facts took place. . . .

            The [c]ourt is well aware of the fact [Appellant] has six
      arrests, two convictions, three violations of parole, and two
      commitments. The [c]ourt is aware of his children. He graduated
      from Frankford High school. The [c]ourt is also well aware of the
      admission that [Appellant] made to the presentence workers that
      he has been gainfully employed by selling drugs and that’s how
      he has been supporting himself.




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            The [c]ourt did not find in reviewing the presentencing
     report or any other indications of the fact as [defense counsel]
     testified that [Appellant] was employed detailing cars. The [c]ourt
     has no evidence of that. The [c]ourt is aware of the fact that he
     has two children. The [c]ourt is well aware of the fact that
     [Appellant] admitted that while incarcerated [he] smoked K-2.

           The [c]ourt’s also aware of the fact that the probation report
     indicates that [Appellant] would be a poor candidate for
     community supervision given his inability to stay arrest free while
     on probation.

     Knowing that [Appellant] was found guilty of an offense, the
     [c]ourt is appalled that three days later he comitted [sic] a crime
     and two months later there’s a gun charge.

           After reviewing the presentencing report, recalling my notes
     from the hearing, and everything that was presented today for
     this sentencing, the Court has taken into account the statutory
     facts I’m required to review by law, the protection of the public,
     the gravity of the offense, the impact on the victims and the
     community, and rehabilitative needs of [Appellant].

N.T. (Sentencing), 6/23/16, at 48–51.        It was at this point that the court

referenced Appellant’s mother, as quoted supra.        In its Pa.R.A.P. 1925(a)

opinion, the trial court noted that its comments were:

     based on the body language and observations of the court while
     the sentencing hearing was held. This information was a valid
     consideration on the nature of the relationship between
     [Appellant] and [his] mother to help for a proper consideration
     regarding his ties to the community and family support. Further,
     [Appellant] did not allege that this consideration was a
     misapplication of the law, manifestly unjust or the result of
     prejudice or ill will by the [c]ourt. From the record, there is no
     indication that the [c]ourt was biased toward [Appellant] or
     misapplied the law with regard to his sentence since he was
     sentenced within the sentencing guideline recommendations and
     within the mandatory maximum for the charges against
     [Appellant].

Trial Court Opinion, 5/23/17, at 14–15.

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      After review, we discern no abuse of discretion. We conclude that there

is no indication that the trial court relied on an improper factor in fashioning

Appellant’s sentence. Rather, it made an observation in response to defense

counsel’s argument and Appellant’s representations during allocution.

Accordingly, it is our determination that there was no abuse of discretion, and

we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2018




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