J-S64042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

    LEONARD O. RILEY, JR

                                 Appellant             No. 1972 MDA 2016


             Appeal from the Judgment of Sentence January 12, 2016
    In the Court of Common Pleas of Dauphin County Criminal Division at No(s):
                            CP-22-CR-0005291-2014

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 14, 2017

        Appellant, Leonard O. Riley, Jr., appeals nunc pro tunc from the

judgment of sentence to serve an aggregate thirty-nine to seventy-eight

months’ imprisonment for delivery of a controlled substance1 and criminal use

of a communication facility.2       Appellant claims that the evidence was

insufficient to sustain the conviction for criminal use of a communication

facility, that the verdicts were against the weight of the evidence, and that

the sentence was manifestly excessive. We affirm.

        The trial court summarized the evidence against Appellant as follows:

           On May 6, 2014, Harrisburg City Police Detective Sean
           Cornick served as the lead detective in a drug investigation

*   Former Justice specially assigned to the Superior Court.
1   35 P.S. § 780-113(a)(30).

2   18 Pa.C.S. § 7512(a).
J-S64042-17


       of a person known as “Mac”. In the investigation, Detective
       Cornick utilized a confidential informant (“CI”) who
       previously assisted in investigations which resulted in
       convictions.

       On the afternoon of May 6, 2014, the CI placed a call to Mac
       in the presence of Detective Cornick. Detective Cornick
       heard a male voice on the other end of the conversation.
       The CI arranged to meet Mac at a customary meeting place,
       Woodbine and Logan Streets in Harrisburg. The CI ordered
       ten packs of heroin. After the phone call, Detective Cornick
       searched the CI’s person and vehicle to ensure that the CI
       did not possess drugs, drug paraphernalia or money. The
       CI possessed only a cell phone. Detective Cornick provided
       the CI with $70 in Dauphin County Drug Task Force buy
       money.

       Harrisburg City Police Detective Nicholas Licata assisted
       with the investigation. Detective Licata and [Office of the
       Attorney General] Agent Henry Giammarco set up
       surveillance in an unmarked vehicle near Woodbine and
       Logan Streets.

       Driving his own vehicle, the CI followed Detective Cornick to
       that location and parked south of Cornick’s vehicle. They
       remained in communication. The CI informed Detective
       Cornick that the target was en route to the location driving
       a black 300 Chrysler. The black Chrysler arrived at the area
       and parked north of Detective Cornick’s vehicle.          An
       individual exited the Chrysler and walked south toward
       Woodbine Street. At trial, Detective Cornick identified the
       individual as [Appellant].

       Detective Licata testified regarding his surveillance.
       Detective Licata saw a black male exit the front passenger
       seat of the Chrysler and toward the detectives’ vehicle. At
       trial, Detective Licata also identified that person as
       [Appellant].

       Both detectives testified that as [Appellant] walked south on
       Woodbine Street, he observed Detective Cornick. Detective
       Cornick drove away in order to avoid further eye contact
       with [Appellant]. [Appellant] continuously watched as
       Detective Cornick drove away. [Appellant] returned to the


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         black Chrysler and also drove away. Up to this point, no
         one had approached the CI’s vehicle and the CI did not exit
         his vehicle.

         Within minutes, the black Chrysler returned and parked
         behind the CI’s vehicle. The CI left his vehicle and entered
         the rear passenger seat of the Chrysler.[3] . . . After the CI
         exited, [Appellant] reached for something in the back seat
         where the CI had been seated.

         Detective Licata maintained constant surveillance of the CI
         after he returned to his vehicle.

         Following the transaction, Detective Cornick instructed the
         CI to follow him to a pre-established secure meeting place.
         The CI followed. At the meeting place, Detective Cornick
         repeated the search as conducted before the transaction.
         The CI handed Detective Cornick ten green glassine bags.
         The CI did not possess any additional drugs or paraphernalia
         and did not have the $70 of Drug Task Force money.
         Pennsylvania State Police Laboratory crime lab testing
         determined that the bags contained a total of .28 grams of
         heroin. (N.T. pp. 23-24).

         Several weeks later, Detective Licata arrested [Appellant] in
         connection with another investigation. In the course of that
         arrest, Detective Licata recovered a phone from [Appellant]
         which contained a series of text messages inquiring about
         the other person’s location at Logan Street and the prices
         for packages of heroin[]. The text message referred to
         [Appellant]’s street names of “Mac” or “Omizz”. The number
         of the phone seized from [Appellant] at that arrest
         contained messages which indicated they were from
         “Omizz” at his new number.




3 The trial court further stated that after the CI entered the car, “[Appellant]
joined the CI in the rear passenger seat. The CI and [Appellant] remained
there for 30-60 seconds.” Trial Ct. Op., 3/11/17 at 4. However, as discussed
below that finding is not supported in the record. See N.T., 1/12/16, at 37
(indicating that Appellant exited the vehicle from the front passenger seat
after the CI got out, and then went to the back seat and reached toward the
area where the CI had been).


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Trial Ct. Op. at 2-4 (record citations omitted).

      On January 12, 2016, Appellant proceeded to a nonjury trial at which

the trial court found him guilty of delivery of a controlled substance and

criminal use of a communication facility. Appellant waived the preparation of

a presentence investigation report, and the court immediately sentenced

Appellant to consecutive sentences of twenty-seven to fifty-four months’

imprisonment for the delivery and twelve to twenty-four months’ for the use

of communication facility.   The trial court directed that the sentences run

consecutive to a previously imposed sentence.4        On January 21, 2016,

Appellant’s counsel filed a motion to withdraw from representation indicating

that Appellant intended to proceed pro se, which the trial court granted on

January 25, 2016. Meanwhile, Appellant filed several pro se post-sentence

motions. The trial court denied the pro se post-sentence motions on February

3, 2016. That same day, Appellant filed a pro se notice of appeal.

      Appellant obtained new counsel, who subsequently discontinued

Appellant’s pro se appeal and filed a Post Conviction Relief Act, 42 Pa.C.S. §§

9541-9546, petition seeking reinstatement of his direct appeal rights.      On

September 27, 2016, the PCRA court granted Appellant’s petition.




4 On the day before trial in the instant case, Appellant was convicted and
sentenced in a separate case docketed in the trial court as “5649-2014.”
Appellant’s Brief at 9 n.2. According to Appellant, he was sentenced to one
and one-half to three years’ imprisonment, and he took a separate appeal at
294 MDA 2017. Id. The current record only contains passing reference to
5649-2014.


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J-S64042-17

      On October 6, 2016, Appellant filed post-sentence motions nunc pro

tunc challenging the weight of the evidence and the discretionary aspects of

the sentence. The trial court denied the post-sentence motions on November

10, 2016. Appellant timely appealed and complied with the trial court’s order

to file and serve a Pa.R.A.P. 1925(b) statement. This appeal followed.

      Appellant presents the following questions for review:

         I. Was not the evidence insufficient to sustain a conviction
         for the offense defined at 18 Pa.C.S. § 7512 (criminal use
         of a communication facility)?

         II. Did not the [trial] court abuse its discretion by failing to
         grant [Appellant] a new trial on the basis that the guilty
         verdicts were against the weight of the evidence?

         III. Was the imposition of an aggregate sentence of three
         years, three months, to six years, six months, clearly
         unreasonable, so manifestly excessive as to constitute an
         abuse of discretion, and inconsistent with the protection of
         the public, the gravity of the offenses, and [Appellant]’s
         rehabilitative needs where the court imposed consecutive
         jail sentences[?]

Appellant’s Brief at 7 (capitalization omitted).

      Appellant first claims that the evidence was insufficient to prove he used

a communication facility to engage in a drug transaction. He notes that the

cellular phone seized from him at the time of the arrest bore a different

number than the one used by CI to contact “Mac” and arrange the transaction

on May 6, 2014. He emphasizes that the Commonwealth “offered no proof

that [he] was the owner of a cell phone account with the particular number .

. . that the CI called on May 6, 2014” or that any other person called him at



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J-S64042-17

that number.     Appellant’s Brief at 24.   Moreover, he notes that Corporal

Cornick only “gave a threadbare description of the actual telephone

communication between the CI and ‘Mac’ on May 6, 2014.” Id. No relief is

due.

       Our review of Appellant’s challenge to the sufficiency of the evidence is

governed by the following precepts:

          The standard we apply in reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted at
          trial in the light most favorable to the verdict winner, there
          is sufficient evidence to enable the fact-finder to find every
          element of the crime beyond a reasonable doubt. In
          applying [the above] test, we may not weigh the evidence
          and substitute our judgment for the fact-finder. In addition,
          we note that the facts and circumstances established by the
          Commonwealth need not preclude every possibility of
          innocence. Any doubts regarding a defendant’s guilt may
          be resolved by the fact-finder unless the evidence is so weak
          and inconclusive that as a matter of law no probability of
          fact may be drawn from the combined circumstances. The
          Commonwealth may sustain its burden of proving every
          element of the crime beyond a reasonable doubt by means
          of wholly circumstantial evidence. Moreover, in applying the
          above test, the entire record must be evaluated and all
          evidence actually received must be considered. Finally, the
          trier of fact while passing upon the credibility of witnesses
          and the weight of the evidence produced, is free to believe
          all, part or none of the evidence.

Commonwealth v. Storey, 167 A.3d 750, 757 (Pa. Super. 2017) (citation

omitted).

       Section 7512 of the Crimes Codes defines criminal use of communication

facility, in part, as follows:

          (a) Offense defined.--A person commits a felony of the
          third degree if that person uses a communication facility to


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         commit, cause or facilitate the commission or the attempt
         thereof of any crime which constitutes a felony under this
         title or under the act of April 14, 1972 (P.L. 233, No. 64),
         known as The Controlled Substance, Drug, Device and
         Cosmetic Act. . . . .

18 Pa.C.S. § 7512(a) (footnote omitted). The      offense     requires     the

Commonwealth to prove “(1) [the defendant] knowingly and intentionally

used a communication facility; (2) [the defendant] knowingly, intentionally,

or recklessly facilitated an underlying felony; and (3) the underlying felony

occurred.” Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004)

      Instantly, the record, when read in a light most favorable to the

Commonwealth, contains adequate circumstantial evidence that Appellant

used a communication facility to facilitate a drug transaction. On May 6, 2014,

the CI indicated he was calling “Mac” to purchase heroin and dialed a number.

Corporal Cornick overheard what he believed was a male voice talking to the

CI. “Mac” was known to operate a black Chrysler 300 with temporary tags.

Corporal Cornick testified that he instructed the CI to keep his normal routine

when dealing with “Mac.” The CI informed the officer that the transaction was

to take place at the intersection of Logan and Woodbine Streets. Appellant

appeared at the designated meeting place as a passenger in a black Chrysler

300 with temporary tags.    The CI, who had been searched for contraband

before meeting with Appellant, returned with ten packets of heroin after

meeting with Appellant.




                                     -7-
J-S64042-17

      Less than a month later, at the time of his arrest on June 4, 2014,

Appellant was in possession of a cellphone. Although that phone’s number

was different than the number used by the CI to contact “Mac,” a search of

the phone indicated that Appellant changed phone numbers and using his

known nickname of “Omizz,” alerted his contacts of his new phone number on

May 24, 2014. The cellphone also contained outgoing text messages referring

to the sender as “Mac” and arranging meetings at the intersection of Logan

and Woodbine.

      Thus, although there was no direct evidence that the CI was in contact

with Appellant to arrange the May 6, 2014 sale, the circumstantial evidence

established that Appellant was the individual identified by the CI as “Mac” on

May 6, 2014.      Moreover, because the CI contacted “Mac” and Appellant

appeared at the designated meeting place, the Commonwealth adduced

sufficient circumstantial proof that the Appellant used a communication facility

to facilitate that transaction.   See Storey, 167 A.3d at 757.     Accordingly,

Appellant’s first claim fails.

      Appellant next claims that the verdicts were against the weight of the

evidence. In support, Appellant sets forth four overlapping arguments. First,

Appellant emphasizes that there was inconsistent testimony regarding the

delivery. Appellant’s Brief at 28. He notes Detective Licata testified that the

exchange occurred in Appellant’s vehicle, while Corporal Cornick believed the

exchange occurred in the CI’s vehicle, and there was no video recording of the



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exchange despite Corporal Cornick’s belief that video surveillance was

conducted. Id.

      Second, Appellant notes there was no direct evidence of an exchange

between him and the CI. He observes that the CI did not testify, none of the

surveilling officers could see a hand-to-hand transaction through the tinted

windows of Appellant’s vehicle, and the CI was not equipped with audio

recording capabilities. Id. at 27-28.

      Third, Appellant challenges the quality of the circumstantial evidence

supporting the allegation he personally delivered the subject heroin.        He

emphasizes that the search of the CI’s clothing and vehicle before and after

the search was perfunctory and did not exclude the possibility that the CI hid

contraband before the transaction or kept the pre-recorded buy money after

the transaction. Id. at 27. He further notes that none of the pre-recorded

buy money was recovered when he was arrested nearly one month after the

controlled purchase.   Id.      Additionally, Appellant observes that a third

person, the driver of Appellant’s vehicle, was in the vehicle at the time of the

transaction. Id. at 13. He also observes there was no evidence introduced

to show he owned the cellular phone contacted by the CI. Id. at 28.

      Fourth, Appellant contends that the text messages recovered from the

cellphone found in his possession at the time of his arrest were wholly

unreliable, because the Commonwealth did not establish he authored the text




                                     -9-
J-S64042-17

messages, and his counsel failed to object to the authenticity of the messages.

For the reasons that follow, we conclude Appellant’s claim lacks merit.

      The principles governing our review of a challenge to the weight of the

evidence are well settled.

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

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

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the evidence.
            One of the least assailable reasons for granting or
            denying a new trial is the lower court's conviction that
            the verdict was or was not against the weight of the
            evidence and that a new trial should be granted in the
            interest of justice.

         This does not mean that the exercise of discretion by the
         trial court in granting or denying a motion for a new trial


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        based on a challenge to the weight of the evidence is
        unfettered.   In describing the limits of a trial court's
        discretion, we have explained:

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

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

omitted).

     The trial court here opined that the evidence against Appellant was

overwhelming: to /and during ;

        We found that [Appellant] delivered a controlled substance
        based upon the following credible evidence: police gave the
        CI Task Force funds; the CI called [Appellant] to . . .
        arrange the purchase of ten bags of heroin at Woodbine and
        Logan Streets; [Appellant] arrived and appeared concerned
        by the presence of the detective’s vehicle and drove away;
        [Appellant] returned to complete the transaction with the CI
        in the back seat of [Appellant]’s vehicle; detectives
        maintained constant surveillance of the CI; no one other
        than [Appellant] interacted with the CI during that time
        after the transaction[;] the CI had no funds and possessed
        ten bags of heroin.

                                    ***

        [Appellant] challenges this conclusion solely upon the lack
        of observation of a hand-to hand exchange. The veracity of
        our finding is undiminished by the lack of such evidence in


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         that the Commonwealth may sustain its burden of proving
         [the delivery] by means of wholly circumstantial evidence.

Trial Ct. Op. at 6.

      Appellant’s first two arguments, which focus on the inconsistencies

between Detective Licata’s and Corporal Cornick’s testimony and the absence

of direct evidence that Appellant delivered heroin to the CI, do not establish

an abuse of discretion in the trial court’s rejection of his motion for a new trial.

Corporal Cornick did not have a direct view of the transaction, but Detective

Licata did. Thus, the trial court, as finder of fact, was well within its authority

to credit Detective Licata’s testimony that the exchange occurred in

Appellant’s vehicle.     Moreover, the trial court correctly observed that

Appellant’s convictions could be sustained by circumstantial evidence.          Cf.

Storey, 167 A.3d at 757. Therefore, Appellant’s first and second weight of

the evidence arguments fail.

      As to Appellant’s third argument, which challenges the quality of the

circumstantial evidence, the perceived inadequacy of the search of the CI and

the CI’s vehicle for contraband before the alleged exchange does not warrant

relief. Instantly, Corporal Cornick testified that he followed protocols when

searching the CI, possibly having the CI shake out their undergarments, and

examining the interior of the CI’s car. Although the Corporal did not conduct

a cavity search or exhaust all possible hiding spots in the CI’s vehicle,

Appellant’s arguments rests on speculation that the CI secreted the heroin

before the sale or the recorded buy money after the sale. However, any doubt


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as to Appellant’s conviction must be reasonable, and reasonable doubt does

not require the Commonwealth to prove Appellant’s guilt to a mathematical

certainty. Cf. Storey, 167 A.3d at 757. Thus, we discern no basis to disturb

the trial court’s conclusion that there was ample evidence that the CI obtained

the subject heroin during the meeting inside Appellant’s car, and its finding in

this regard did not shock one’s sense of justice. See Clay, 64 A.3d 1049,

1054-55.

          As noted earlier, however, the record does not support the court’s

suggestion that Appellant was observed getting into the backseat of his vehicle

with the CI. See supra, note 3. Rather, the delivery that occurred inside

Appellant’s vehicle took place between the CI and either Appellant, who was

in the front passenger seat at the time of the alleged transaction, or the driver

of the vehicle.      See N.T., 1/12/16, at 37.    Nevertheless, the absence of

evidence regarding which party delivered the heroin to the CI does not warrant

relief.

          The term “‘[d]eliver’ or ‘delivery’ means the actual, constructive, or

attempted transfer from one person to another of a controlled substance,

other drug, device or cosmetic whether or not there is an agency relationship.”

35 P.S. § 780-102(b). This Court has noted that an actual delivery “means

‘[t]o convey or remove from one . . . person to another; pass or hand over

from one to another.’” Commonwealth v. Murphy, 795 A.2d 1025, 1030

(Pa. Super. 2002). A “constructive transfer”



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         requires that a person making a constructive transfer of a
         controlled substance, the transferor, must have ownership
         of the controlled substance; i.e., the controlled substance
         must belong to the person, or the person must have
         dominion and control over it. The constructive transfer of
         the controlled substance occurs, then, whenever it is given
         to another by a third person who is acting at the transferor’s
         direction or command.

Id. at 1031-32.

      Instantly, as set forth above, there was ample evidence that the CI

contacted “Mac” to purchase heroin, and that Appellant appeared at the

prearranged location in his own vehicle. Appellant, moreover, appeared to

conduct “counter surveillance” before the meeting and had his driver take him

around the block before engaging with the CI.        Later, after the CI exited

Appellant’s vehicle, Appellant exited the car, rummaged in the area where the

CI had been seated, returned to the front passenger seat, and left the scene.

Under these circumstances, we find adequate support that Appellant either

directly, or through a third person under his command, transferred the heroin

to the CI. Therefore, no relief is due.

      Fourth, although Appellant asserts that the text messages from the

cellular phone recovered at time of his arrest were insufficiently authenticated,

the record belies Appellant’s argument.       Rather, the record reveals that

Appellant was known as “Mac” or “Omizz,” that the outgoing messages used

those nicknames, and that these messages also referred to purported

transactions at the same location as Appellant’s sale to the CI. See In re

F.P., 878 A.2d 91, 94 (Pa. Super. 2005) (circumstantial evidence which “will


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J-S64042-17

support a finding that the writing is genuine will suffice to authenticate the

writing” (citations omitted)).    Therefore, we find no merit to Appellant’s

assertions that the messages were not entitled to any weight for the limited

purposes of identifying him as the individual known as “Mac” called by the CI.

Moreover, because none of Appellant’s arguments in support of his weight of

the evidence claim show reversible error, we affirm the trial court’s denial of

his motion for a new trial. See Clay, 64 A.3d 1049, 1054-55

      Appellant, in his final claim, asserts that the trial court’s sentence was

manifestly excessive. Appellant acknowledges that he was sentenced in the

standard range for each offense but argues that the application of the

guidelines was clearly unreasonable in light of his history and background.

Appellant’s Brief at 19, 34   He further challenges the decision of the court to

run the two sentences in this case consecutively and consecutive to his

previously imposed sentence. Id. at 19, 33. We conclude Appellant has failed

to raise a substantial question warranting review.

      This Court has stated that the

         discretionary aspects of [an appellant’s] sentence [ ] are not
         appealable as of right. Rather, an appellant challenging the
         sentencing court’s discretion must invoke this Court’s
         jurisdiction by satisfying a four-part test.

            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


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             substantial question that the sentence appealed from
             is not appropriate under the Sentencing Code, 42
             Pa.C.S.[] § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Appellant filed a post-sentence motion nunc pro tunc requesting that

the sentences in this case run concurrently to each other and the previously

imposed sentence, and that the sentence was too severe in light of his

rehabilitative needs. Appellant perfected this appeal by filing an appeal nunc

pro tunc, and he preserved his sentencing claim in his Rule 1925(b)

statement.    Appellant has included in his brief a Rule 2119(f) statement.

Therefore, we proceed to consider whether Appellant raised a substantial

question.

      It is well settled that

         [t]he determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis. “A
         substantial question exi[s]ts 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.”

         “Generally, Pennsylvania law affords the sentencing court
         discretion to impose its sentence concurrently or
         consecutively to other sentences being imposed at the same
         time or to sentences already imposed. Any challenge to the
         exercise of this discretion ordinarily does not raise a
         substantial question.” In fact, this Court has recognized
         “the imposition of consecutive, rather than concurrent,
         sentences may raise a substantial question in only the most
         extreme circumstances, such as where the aggregate
         sentence is unduly harsh, considering the nature of the


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         crimes and the length of imprisonment.” That is “in our
         view, the key to resolving the preliminary substantial
         question inquiry is whether the decision to sentence
         consecutively raises the aggregate sentence to, what
         appears upon its face to be, an excessive level in light of the
         criminal conduct at issue in the case.”

Commonwealth v. Austin, 66 A.3d 798, 808-09 (Pa. Super. 2013) (citations

omitted).

      Appellant presents boilerplate assertions that the trial court failed to

consider his rehabilitative needs and mitigating factors and focused solely on

the gravity of the offense.5 However, considering the nature of the crimes we

do not find the individual sentences or the aggregate sentence of thirty-nine

to seventy-eight months’ imprisonment to be so severe a punishment

constituting an extreme circumstance under which the aggregate sentence is

unduly harsh. Similarly, Appellant presents no further facts to conclude that

the decision to run the sentences in this case consecutive to the sentence of

sixteen to thirty-six months’ imprisonment in his prior case was excessive in

light of the criminal conduct at issue. See Commonwealth v. Hoag, 665

A.2d 1212, 1214 (Pa. Super. 1995) (reiterating principle that defendants are

not entitled to “volume discounts” for multiple criminal acts). Therefore, we

find no substantial question and decline to proceed to review of Appellant’s

sentencing claim.




5 We note that Appellant does not specify any mitigating circumstances. We
further note that during allocution, Appellant merely invoked his constitutional
rights to confront and cross-examine his accusers. N.T. at 57.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2017




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