J-S34014-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL D. WALLACE, JR.,

                            Appellant               No. 2144 MDA 2014


          Appeal from the Judgment of Sentence November 18, 2014
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0000073-2014


BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 28, 2015

       Michael D. Wallace, Jr. appeals from the judgment of a sentence of

eighteen to thirty-six months imprisonment entered after he pled guilty to

possession with intent to deliver (“PWID”) (heroin) and possession of

marijuana. We affirm.

       We glean the following undisputed facts from the affidavit of probable

cause attached to the criminal complaint.1 On January 9, 2014, Williamsport

Police Officer Justin Snyder was working nightshift when he observed an
____________________________________________


1
  As the notes of testimony from the guilty plea hearing were not included in
the certified record transmitted to this Court on appeal, we do not have the
benefit of the the Commonwealth’s recitation of the factual basis for
Appellant’s guilty plea. However, since the only issue that Appellant levels
on appeal relates to the discretionary aspects of sentencing, the omitted
transcript is not critical to our review.
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Oldsmobile sedan with three occupants fail to obey a stop sign at the

intersection of Seventh Avenue and Memorial Avenue in Williamsport. The

vehicle proceeded down Memorial Avenue where Officer Snyder initiated a

traffic stop.   Upon approaching the automobile, Officer Snyder detected a

strong odor of marijuana. Officer Snyder instructed Appellant, who was in

the backseat, to place his hands on the back of the front seat headrest while

the officer performed a weapons frisk on the passenger he removed from the

front of the car. Appellant initially complied, but while Officer Snyder was

distracted with the other passenger, Appellant made furtive movements and

repeatedly concealed his hands near his waist.

      Police Officer Jonathan Deprenda arrived at the scene while officer

Snyder was occupied with the front-seat passenger.          Officer Deprenda

removed Appellant from the rear of the car and frisked him for weapons.

Appellant tried to break free from Officer Deprenda but was apprehended

and detained.    During the scuffle, Appellant either dropped or discarded a

zip-lock bag containing marijuana.

      Appellant was arrested and the search incident to arrest revealed three

cell phones, $367, and another zip-lock bag of marijuana packaged

identically to the first one.   Officer Snyder placed Appellant in his police

cruiser for transport to police headquarters. He advised Appellant that the

back of the police cruiser had been searched for contraband prior to the start

of his shift and that anything discovered in the unit following Appellant’s


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removal would necessarily be from Appellant’s person.         Upon transporting

Appellant to police headquarters and removing him from the vehicle, Officer

Snyder discovered several additional bundles of heroin on the floorboard and

seat where Appellant had been seated. A subsequent strip search revealed

fifteen more bundles of heroin, four bags of marijuana, and a marijuana

blunt.     In sum, Appellant possessed 210 individually packaged bags of

heroin weighing approximately 8.4 grams, six bags of marijuana, a

marijuana blunt, $367, and three cellular telephones. He was charged with

one count of PWID between one and ten grams of heroin and one count of

possession of marijuana.

         Appellant entered an open guilty plea to both charges and the trial

court ordered a pre-sentence investigation (“PSI”).            N.T., Sentencing

Hearing, 11/18/14, at 2.     When Appellant appeared for sentencing, it was

determined that his prior record score was two, in light of a prior felony drug

offense.     However, his offense gravity score was seven due to the large

quantity of heroin that he possessed.       Based upon Appellant’s scores, the

standard range of the sentencing guidelines provided for a minimum

sentence between twelve and eighteen months imprisonment.                 Id. at 15.

Appellant     was   subsequently   sentenced    to   incarceration   at     a   state

correctional institution for eighteen to thirty-six months, plus two years of

probation after his release. Sentencing Order, 11/18/14, at 1. No further

penalty was imposed for possession of marijuana. Id.


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      In imposing sentence, the trial court ruled that Appellant was eligible

for entry into the Recidivism Risk Reduction Incentive (“RRRI”) program,

which could potentially reduce the time spent in prison to thirteen and one-

half months. N.T., Sentencing Hearing, 11/18/14, at 16. He was also given

credit for time served in the county prison while awaiting sentencing. Id. at

13. Appellant did not file a post-sentence motion. However, after the period

for filing post-sentence motions elapsed, Appellant informed his counsel that

he wished to file an appeal challenging the discretionary aspects of his

sentence.

      Appellant presents the following issue for our review:

      Did the trial court abuse its discretion when imposing a minimum
      sentence at the top of the standard range of the sentencing guidelines,
      where the Appellant entered a guilty plea, accepted responsibility, and
      was in need of rehabilitation?

Appellant’s Brief at 4.

      Four requirements must be met before this Court will address the

merits of an appeal concerning the discretionary aspects of sentencing.

Commonwealth v. Lebarre, 961 A.2d 176, 178 (Pa. Super. 2008). These

elements are as follows: (1) whether Appellant has filed a timely notice of

appeal; (2) whether the issue was raised at sentencing or in a post-sentence

motion and preserved in a Rule 1925(b) statement; (3) whether the brief

contains a statement of the reasons relied upon for the appeal in compliance

with Pa.R.A.P 2119(f), and; (4) whether there is a substantial question that




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the sentence appealed from is not appropriate under the sentencing code.

Id.

      “Issues challenging the discretionary aspects of sentencing must be

raised in a post-sentence motion or by raising the claim during sentencing

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.” Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.

Super. 2003) (citations omitted).               Instantly, Appellant failed to level a

challenge to the discretionary aspects of his sentence during the sentencing

hearing or in a post-sentence motion. Although Appellant requested during

the sentencing hearing that the trial court fashion a sentence at the lower

end of the standard range of the sentencing guidelines, he failed to

challenge the trial court’s imposition of a sentence at the top of the standard

range or argue that the sentence imposed was unreasonable or manifestly

excessive. N.T., Sentencing Hearing, 11/18/14, at 14-16. Hence, he did not

raise this discretionary sentencing issue during the sentencing hearing.

Since Appellant also failed to file a post-sentence motion asserting this issue,

it is waived.

      Assuming, arguendo, that Appellant had successfully raised and

preserved       this   issue    for   appeal,   his   sentencing   claim   is   meritless.

Appellant’s central argument is that the trial court abused its discretion by

sentencing      him    to   a    “clearly   unreasonable”    period   of   incarceration.

Appellant posits that a shorter sentence in the standard range would be


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more appropriate based upon a balanced consideration of the sentencing

factors. Appellant’s brief at 9-10. This argument is legally unsupported.

       Herein, the trial court fashioned the sentence in accordance with the

sentencing guidelines.    204 Pa.Code § 303.1.         Applying Appellant’s prior

record and offense gravity scores to the basic sentencing matrix, the court

accurately determined that the standard range for minimum terms of

confinement for PWID (between one and ten grams of heroin) fell between

twelve and eighteen months.       204 Pa.Code § 303.16.         As noted, the trial

court’s sentence of eighteen to thirty-six months incarceration was at the

top end of the sentencing guidelines’ standard range.

       In addition to imposing a standard range sentence, the trial court

fashioned the sentence with the benefit of the PSI report. N.T, 11/18/14, at

3.    This Court has previously held that, absent more, the imposition of a

standard range sentence in combination with the existence of a PSI report

cannot be considered excessive or unreasonable. Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 546 (Pa.Super. 1995); see also Commonwealth

v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013); Commonwealth v. Moury,

992 A.2d 162, 171 (Pa.Super. 2010) (same). Herein, Appellant’s argument

that a reduced sentence would reflect a more appropriate consideration of

the    appropriate   sentencing   factors   is   insufficient   to   overcome   the

presumption of reasonableness created by the combination of the trial

court’s consideration of the PSI in conjunction with its imposition of a


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standard-range sentence.    Thus, even if Appellant had leveled this claim

properly and preserved it for our review, we would have rejected it.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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