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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
LLOYD RICHARDSON,                          :          No. 3817 EDA 2017
                                           :
                          Appellant        :


          Appeal from the Judgment of Sentence, November 21, 2017,
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos. CP-51-CR-0002838-2016,
                           CP-51-CR-0002839-2016


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 08, 2019

        Lloyd Richardson appeals from the November 21, 2017 judgment of

sentence entered by the Court of Common Pleas of Philadelphia County

following his conviction of two counts of attempted murder and one count of

persons not to possess firearms.1 After careful review, we affirm.

        The trial court set forth the following factual and procedural history:

              On December 31, 2015, at around 4:19 P.M.,
              Joanna Colon and her mother, Maria Del Carmen
              Ramos, were parking their vehicle when Ms. Colon
              heard gunshots and noticed that her passenger
              window was broken. She stepped out of the car and
              observed [appellant], whom she knows as her
              neighbor, shooting at her with a shotgun from his
              porch at 4433 North 7th Street. Ms. Colon was then
              shot in the neck and shoulder and saw that her
              mother had been shot inside the vehicle.

1   18 Pa.C.S.A. §§ 901(a) and 6105(a), respectively.
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            Shortly after, officers responded to a radio call for a
            person shooting a gun on 4400 North 7th Street in
            Philadelphia.       Upon arrival, police observed
            Ms. Colon, suffering from gunshot wounds to her
            face, neck, and shoulder.       Police also observed
            Ms. Ramos, suffering from gunshot wounds to her
            right shoulder. While both victims were transported
            to the hospital, the police officers were directed to
            the property of North 7th Street by a man who stated
            that his son, [appellant], shot the two women and
            was currently inside of that property. Three police
            officers went to that property and saw a shotgun
            inside of a case, along with several shotgun shells
            lying on the floor of the porch area. Police officers
            were met by a witness, Angelita Pagan, who told the
            police that her husband, [a]ppellant, fired the
            shotgun at Ms. Ramos and Ms. Colon. The witness
            explained that [a]ppellant thought his two victims
            were “someone else.”

            Police observed [appellant] sitting inside the living
            room of the property. Appellant was placed into
            custody, where he was positively identified by
            Ms. Ramos as the male that shot them both from the
            porch of 4433 North 7th Street. Appellant was then
            taken into custody and processed.

Trial court opinion, 5/1/18 at 2-3 (citations omitted).

            On April 11, 2017, [a]ppellant entered an open guilty
            plea to two counts of Criminal Attempt – Murder and
            one count of [persons not to possess firearms].
            Sentencing was deferred for a Presentence
            Investigation Report (“PSI”) and mental health
            evaluation.

            On September 8, 2017, [a]ppellant was sentenced to
            an aggregate term of eighteen and one-half to
            thirty-seven years of incarceration for the case
            docketed at No. 2838 CR 2016.        Appellant was
            sentenced to fifteen to thirty years on attempted
            murder and a consecutive three and one-half to
            seven years on [persons not to possess firearms].


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            This sentence was ordered to run concurrent to a
            twenty to forty year sentence on the case docketed
            at No. 2839 CR 2016.

            On September 15, 2017, [a]ppellant filed a motion
            to reconsider sentence. On November 21, 2017, the
            [trial] court denied [a]ppellant’s motion as it related
            to docket No. 2838. However, upon reconsideration,
            [a]ppellant’s sentence for docket No. 2839 was
            reduced to fifteen to thirty years [on November 21,
            2017].      The sentences were ordered to run
            concurrently. In addition, mental health treatment
            was ordered.

Id. at 1-2 (citations omitted).

      On November 21, 2017, appellant filed a notice of appeal to this court.

The trial court, on November 28, 2017, ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

After receiving an extension of time from the trial court, appellant filed a

Rule 1925(b) statement on March 12, 2018. On May 1, 2018, the trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Whether the trial court abused its discretion in
            imposing     a   manifestly    excessive   cumulative
            aggregate sentence of eighteen and one-half (18½)
            to thirty-seven (37) years, that was grossly
            disproportionate to the gravity of the offense,
            [a]ppellant’s rehabilitative needs, and the protection
            of the community, thereby violating the fundamental
            norms of sentencing?

Appellant’s brief at 4.

      In his sole issue on appeal, appellant contends that his aggregate

sentence of 18½ to 37 years’ imprisonment was harsh and excessive.


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Specifically, appellant’s challenge to the discretionary aspects of sentence is

on the grounds that the trial court failed to consider his mitigating

circumstances, including appellant’s post-traumatic stress disorder, limited

criminal history, and appellant’s expression of remorse at sentencing. (Id.

at 16-17.)

                  [T]he proper standard of review when
                  considering whether to affirm the
                  sentencing court’s determination is an
                  abuse of discretion. . . . [A]n abuse of
                  discretion is more than a mere error of
                  judgment; thus, a sentencing court will
                  not have abused its discretion unless the
                  record discloses that the judgment
                  exercised was manifestly unreasonable,
                  or the result of partiality, prejudice, bias
                  or ill-will. In more expansive terms, our
                  Court recently offered: An abuse of
                  discretion may not be found merely
                  because an appellate court might have
                  reached a different conclusion, but
                  requires      a   result      of    manifest
                  unreasonableness,          or      partiality,
                  prejudice, bias, or ill-will, or such lack of
                  support so as to be clearly erroneous.

                  The    rationale    behind   such     broad
                  discretion    and     the   concomitantly
                  deferential standard of appellate review
                  is that the sentencing court is in the best
                  position to determine the proper penalty
                  for a particular offense based upon an
                  evaluation       of     the       individual
                  circumstances before it.

             [Commonwealth v.] Walls, [926 A.2d 957,] 961
             [(Pa. 2007)] (internal citations omitted).

             Challenges to the discretionary aspects of sentencing
             do not entitle an appellant to review as of right.


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          Commonwealth v. Sierra, 752 A.2d 910, 912
          (Pa.Super. 2000).       An appellant challenging the
          discretionary aspects of his sentence must invoke
          this Court’s jurisdiction by satisfying a four-part test:

                [W]e 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, [] 909 A.2d 303
          ([Pa.] 2006) (internal citations omitted). Objections
          to the discretionary aspects of a sentence are
          generally waived if they are not raised at the
          sentencing hearing or in a motion to modify the
          sentence imposed. Commonwealth v. Mann, 820
          A.2d 788, 794 (Pa.Super. 2003), appeal denied, []
          831 A.2d 599 ([Pa.] 2003).

          The determination of what constitutes a substantial
          question must be evaluated on a case-by-case basis.
          Commonwealth v. Paul, 925 A.2d 825, 828
          (Pa.Super. 2007).     A substantial question exists
          “only when the appellant advances a colorable
          argument that the sentencing judge’s actions were
          either: (1) inconsistent with a specific provision of
          the Sentencing Code; or (2) contrary to the
          fundamental norms which underlie the sentencing
          process.” Sierra, supra at 912-13.

          As to what constitutes a substantial question, this
          Court does not accept bald assertions of sentencing
          errors. Commonwealth v. Malovich, 903 A.2d


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             1247, 1252 (Pa.Super. 2006). An appellant must
             articulate the reasons the sentencing court’s actions
             violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).

     Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Appellant, however, failed to file a post-sentence motion after he

was re-sentenced on November 21, 2017.              We nonetheless find that

appellant has adequately preserved this issue on appeal because the

purpose     of   a   post-sentence   motion   has    been   satisfied.   See

Commonwealth v. Corley, 31 A.3d 293, 297 (Pa.Super. 2011) (finding

that when a trial court has an opportunity to modify a defendant’s sentence

and does so, an appellant need not file an additional post-sentence motion).

     We must now determine whether appellant has raised a substantial

question.   We have specifically held that an averment that the trial court

failed to adequately consider mitigating circumstances does not raise a

substantial question.    Commonwealth v. Downing, 990 A.2d 788, 794

(Pa.Super. 2010), citing Commonwealth v. Matroni, 923 A.2d 444, 455

(Pa.Super. 2007), appeal denied, 952 A.2d 675 (Pa. 2008). Additionally,

the trial court had the benefit of a pre-sentence report.          “Where the

sentencing judge had the benefit of a pre-sentence report, it will be

presumed that he was aware of relevant information regarding appellant’s



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character and weighed those considerations along with the mitigating

statutory factors.”   Commonwealth v. Conte,             A.3d      , 2018 WL

5666923 at *5 (Pa.Super. 2018), quoting Commonwealth v. Fullin, 892

A.2d 843, 849-850 (Pa.Super. 2006). We therefore find that appellant fails

to raise a substantial question.

      Accordingly, we do not have jurisdiction to consider the merits of

appellant’s appeal of the discretionary aspects of his sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 3/8/19




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