J-S46037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EDWIN MORALES                              :
                                               :
                      Appellant                :   No. 1996 MDA 2016

            Appeal from the Judgment of Sentence October 17, 2016
               In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000293-2016,
                            CP-36-CR-0000344-2015


BEFORE:        BOWES, OLSON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 14, 2017

        Appellant Edwin Morales appeals from the judgment of sentence

entered by the Court of Common Pleas of Lancaster County after Appellant

entered guilty pleas for multiple offenses on two separate dockets.

Appellant contends the lower court abused its discretion in imposing an

excessive sentence. We affirm.

        On July 22, 2014, officers executed a traffic stop of Appellant’s BMW

after Appellant failed to properly use a turn signal.       In the course of this

stop, officers found Appellant was in possession of 12.76 grams of cocaine.

Appellant gave the officers his brother’s name when asked for identification.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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After his arrest and arraignment, Appellant was released after he posted

$100,000 cash bail.

      While on bail, officers again observed Appellant failing to use his turn

signal on January 8, 2015.    After the officers pulled Appellant over for this

violation, they arrested him for an outstanding warrant for a charge of

Possession with Intent to Deliver a Controlled Substance (PWID).            On

January 9, 2015, officers executed a search warrant of Appellant’s BMW and

recovered a Taurus 9 mm semi-automatic handgun in the center console of

the vehicle. Appellant was not permitted to have a firearm due to a 2007

conviction of a felony drug offense.

      On January 8, 2016, Appellant pled guilty to PWID, providing false

identification to law enforcement, driving with a suspended license, and a

summary traffic violation in connection with his July 22, 2014 arrest. These

charges were docketed at CP-36-CR-0000344-2015.           On July 12, 2016,

Appellant pled guilty to persons not to possess a firearm and possession of a

firearm without a license in connection with his January 8, 2015 arrest.

These charges were docketed at CP-36-CR-0000293-2016. Sentencing was

deferred for the preparation of a pre-sentence report.

      On October 17, 2016, the lower court held a sentencing hearing on

both dockets.    With respect to docket 344-2015, the sentencing court

imposed thirty-three (33) to sixty-six (66) months’ imprisonment on the

PWID charge, a concurrent one year term of probation for the false

identification charge, and fines and costs for the remaining offenses. With

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respect to docket 293-2016, the sentencing court imposed six to twelve

years’ imprisonment on the persons not to possess charge and a concurrent

five to ten years’ on the possession of firearm without a license charges. As

the lower court determined that the sentences on each docket would be

served consecutively, Appellant received an aggregate sentence of 105 to

210 months’ imprisonment (or 8¾ to 17½ years imprisonment). Appellant

filed a motion for reconsideration of his sentence, which the lower court

denied. Appellant filed a timely appeal and complied with the lower court’s

direction to file a concise statement of errors complained of on appeal.

      In his statement of questions presented in his appellate brief,

Appellant raises one issue for our review, claiming that the “sentence

imposed by the court [was] so manifestly excessive as to constitute too

severe a punishment, clearly unreasonable under the circumstances of this

case and not consistent with the protection of the public, the gravity of the

offenses, and [Appellant’s] rehabilitative needs.” Appellant’s Brief, at 5.

      It is well-established that “[a] challenge to the discretionary aspects of

sentencing    does   not   entitle   an    appellant   to   review   as   of   right.”

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super.

2016).   In order to invoke this Court’s jurisdiction to address such a

challenge, the appellant must satisfy the following four-part test: the

appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,

903; (2) preserve the issues at sentencing or in a timely post-sentence

motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief

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does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set

forth a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b).            Id.

Appellant filed a timely notice of appeal, preserved his sentencing claim

before the trial court, and submitted a Rule 2119(f) statement in his

appellate brief.

      We may now determine whether Appellant has raised a substantial

question for our review.         “The determination of what constitutes a

substantial   question   must    be   evaluated   on   a   case-by-case   basis.”

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015). This

Court has provided as follows:

      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.

      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact
      on victim and community, and rehabilitative needs of the
      defendant. And, of course, the court must consider the
      sentencing guidelines.

Id. (internal citations omitted).       “This Court has previously found a

substantial question to be raised where an appellant alleged that the

sentencing court...failed to consider relevant sentencing criteria, including

the protection of the public, the gravity of the underlying offense and the

rehabilitative needs of appellant[.]” Commonwealth v. Serrano, 150 A.3d


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470, 473 (Pa.Super. 2016) (citation omitted). As a result, we find Appellant

has raised a substantial question for our review.

      In reviewing a challenge to the discretionary aspects of sentence, we

emphasize that:

      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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).   In reviewing the sentence, an appellate court shall

have regard for: (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the opportunity of the

sentencing court to observe the defendant, including any presentence

investigation; (3) the findings upon which the sentence was based; and (4)

the guidelines promulgated by the commission. See 42 Pa.C.S.A. §

9781(d)(1)–(4).

      A sentence may be found to be unreasonable if it fails to properly

account for these four statutory factors, or if it “was imposed without

express or implicit consideration by the sentencing court of the general

standards applicable to sentencing” as set forth in 42 Pa.C.S.A. § 9721(b).

Commonwealth v. Walls, 592 Pa. 557, 569, 926 A.2d 957, 964 (2007).



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Moreover, “a trial court is required to state its reasons for the sentence on

the record.” 42 Pa.C.S. § 9721(b). “This requirement can be satisfied by

the trial court indicating, on the record, that it has been informed by a pre-

sentence report.”   Commonwealth v. Pennington, 751 A.2d 212, 217

(Pa.Super. 2000).

      In this case, the lower court imposed standard range sentences on

each count after reviewing the record and the pre-sentence investigation

report. We observe that:

      [w]here the sentencing court had the benefit of a presentence
      investigation report (“PSI”), we can assume the sentencing court
      was aware of the relevant information regarding the defendant's
      character and weighed those considerations along with
      mitigating statutory factors. Further, where a sentence is within
      the standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.

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

and internal quotation marks omitted). Discerning no abuse of discretion by

the lower court, we will not disturb Appellant’s sentence on appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2017




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