J-A30042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NAHEEM ADAMS,

                            Appellant                No. 1016 EDA 2014


          Appeal from the Judgment of Sentence November 22, 2013
            in the Court of Common Pleas of Northampton County
              Criminal Division at No.: CP-48-CR-0000287-2013


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MARCH 04, 2015

        Appellant, Naheem Adams, appeals from the judgment of sentence

imposed following his jury conviction of third-degree murder.1 We affirm.

        This case arises from the shooting death of George Jeter. The relevant

facts and procedural history are as follows.          On July 27, 2012, at

approximately 7:00 p.m., Harry Booker and Quincy Wilson went to Michael

Comito’s apartment to purchase crack cocaine. Comito called Appellant to

arrange the purchase, but Appellant did not have any crack cocaine. Comito

then called Jeter, and arranged to buy two bags of crack. Appellant arrived

at Comito’s apartment at approximately 8:00 p.m.               He entered the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502(c).
J-A30042-14



apartment, indicated that he did not have any drugs, and walked out the

back door and sat on the back step.            Jeter arrived at the apartment at

approximately     9:00   p.m.,    and   he    and   Comito   completed     the   drug

transaction.    Jeter left through the side door and Comito and the other

individuals inside the house heard what sounded like people pushing and

shoving each other outside. Comito opened the door to see what was taking

place and Appellant told him to go back in the house and shut the door.

Comito shut the door and heard multiple gunshots.              Comito opened the

door, saw Jeter lying on the ground, unsuccessfully attempted to revive him,

and called 911. Another individual in the apartment, Karen Culver, looked

out of a window and saw a person running away.

      Appellant    and   his     girlfriend   moved    out    of   their   apartment

approximately two days after the murder. In October 2012, police arrested

him in New York. Appellant informed detectives that he left the Easton area

on July 27, 2012, and that he never returned.                Videotape surveillance

footage obtained by police shows Appellant walking in the vicinity of

Comito’s apartment at 8:22 p.m. on the night of Jeter’s murder.

      On July 30, 2013, the Commonwealth filed a motion in limine

requesting that the court permit it to introduce evidence of Appellant’s prior

bad act of drug dealing pursuant to Pennsylvania Rule of Evidence 404(b).

Specifically, the Commonwealth sought to present evidence that Appellant

was a drug dealer who had regularly provided drugs to the residents of

Comito’s house. The trial court granted the motion on August 1, 2013. The

                                         -2-
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case proceeded to a four-day jury trial, and the testimony established that

Jeter died as a result of multiple gunshot wounds to the chest and torso. On

August 8, 2013, the jury found Appellant guilty of third-degree murder.2

         On November 22, 2013, after considering a pre-sentence investigation

(PSI) report, the trial court sentenced Appellant to a term of not less than

twenty nor more than forty years’ incarceration.        On December 2, 2013,

Appellant filed a timely post-sentence motion, which the trial court denied

following argument. This timely appeal followed.3

        Appellant raises five issues for our review:

     1.    Was the evidence presented at trial insufficient, as a matter
     of law, to sustain a conviction for the offense of third degree
     murder such that the trial court erred when it did not enter a
     judgment of acquittal?

     2.   Was the jury’s verdict of third degree murder against the
     weight of the evidence such that Appellant is entitled to a new trial?

     3.   Did the trial court err in allowing Appellant’s prior bad acts to
     be admissible under 404(b)(1)?

     4.    Was the Commonwealth erroneously permitted to introduce
     into evidence pictures of the victim’s face and body?

     5.   Did the trial court err in the discretionary aspects of its
     sentence?

____________________________________________


2
    The jury found Appellant not guilty of first-degree murder.
3
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on April 21, 2014. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on May 16, 2014.
See Pa.R.A.P. 1925(a).



                                           -3-
J-A30042-14


(Appellant’s Brief, at 6).

      In his first issue, Appellant challenges the sufficiency of the evidence

to support his third-degree murder conviction.          (See id. at 30-38).      He

maintains that the Commonwealth failed to prove that he was involved in

the homicide, and that it did not establish the element of malice. (See id.

at 33, 37).     He contends that the testimony of the Commonwealth’s

witnesses,   whom     he     characterizes   as   “incoherent   drug   users,”   was

inconsistent and inconclusive. (Id. at 37; see id. at 36). He points to the

testimony of “[t]he Commonwealth’s most inconsistent witness, Mike

Comito,” to support his argument that the Commonwealth’s evidence was

insufficient as a matter of law. (Id. at 34; see id. at 36). This issue lacks

merit.

             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
      finder 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.

                                        -4-
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Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citations

omitted).

     The Pennsylvania Crimes Code defines murder of the third degree as

“[a]ll other kinds of murder” other than first or second-degree murder. 18

Pa.C.S.A. § 2502(c). “Murder in the third degree is an unlawful killing with

malice but without the specific intent to kill.” Commonwealth v. Dunphy,

20 A.3d 1215, 1219 (Pa. Super. 2011) (citations omitted).

          To convict an accused of third degree murder, the
     Commonwealth must prove that the accused killed another
     person with malice.

                   The elements of third degree murder, as
            developed by case law, are a killing done with legal
            malice but without specific intent to kill required in
            first degree murder. Malice is the essential element
            of third degree murder, and is the distinguishing
            factor between murder and manslaughter.

            Malice under the law comprehends not only a particular ill-
     will, but every case where there is wickedness of disposition,
     hardness of heart, cruelty, recklessness of consequences, and a
     mind regardless of social duty, although a particular person may
     not be intending to be injured. Malice may be inferred from the
     attending circumstances of the act resulting in death. Otherwise
     stated, malice may be found where the defendant has
     consciously disregarded an unjustified and extremely high risk
     that h[is] conduct might cause death or serious injury to
     another.

Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008), appeal

denied, 964 A.2d 1 (Pa. 2009) (citations and quotation marks omitted).

     Our Supreme Court has stated that “[m]alice . . . may be inferred from

the use of a deadly weapon upon a vital part of the victim’s body.”



                                    -5-
J-A30042-14



Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citation

omitted).

       Here, the record reflects that Comito had asked both Appellant and

Jeter to supply him with crack cocaine in the past, and that, on the night of

Jeter’s murder, he called Appellant to arrange a drug purchase. (See N.T.

Trial, 8/06/13, at 79-80, 82-83). Appellant told Comito that he was “out of

stuff,” and Comito called Jeter instead to buy the crack. (Id. at 82; see id.

at 80, 83, 86). Although Appellant did not have any crack to sell, he arrived

at Comito’s apartment anyway and sat on the back porch. (See id. at 86-

87, 90, 94). Jeter then arrived at Comito’s apartment, completed the drug

transaction, and left the house. (See id. 92, 95). Immediately after Jeter

walked out the door, Comito and the other individuals in the apartment

heard what sounded like people fighting on the porch. (See id. at 95-96).

Comito opened the door and Appellant told him to “get back in the house,

shut the door.” (Id at 99).4 Comito shut the door and then heard multiple

gunshots. (See id. at 100). Karen Culver looked out of the window into the

backyard and saw a person running away.          (See id. 154-57).   After the




____________________________________________


4
  At trial, Comito consistently testified that Appellant told him to shut the
door. (See N.T. Trial, 8/06/13, at 99, 125). However, at the preliminary
hearing, he testified that he could not be sure that the voice he heard telling
him to shut the door was Appellant’s. (See id. at 124-25; see also N.T.
Preliminary Hearing, 1/18/13, at 31).



                                           -6-
J-A30042-14



murder, Appellant and his girlfriend left the Easton area abruptly and went

to New York. (See N.T. Trial, 8/07/13 at 12-13, 89-90).

      Upon review of the record, and viewing the evidence in the light most

favorable to the Commonwealth, see Cahill, supra at 300, we conclude

that the trial court properly found the evidence was sufficient to sustain

Appellant’s conviction. Although Comito’s testimony at trial was inconsistent

with his testimony at the preliminary hearing, it was for the jury as

factfinder to resolve credibility issues. See id. Comito consistently testified

at trial that Appellant directed him to shut the door, and it was for the jury

to believe “all, part, or none of the evidence.”      Id.   Further, although

Appellant specifically challenges the element of malice, the evidence

established that Jeter’s death was caused by multiple gunshot wounds to the

chest and torso, and the jury could infer “[m]alice . . . from the use of a

deadly weapon upon a vital part of the victim’s body.” Ramtahal, supra at

607. The record supports the trial court’s determination that, although there

were some inconsistencies in the Commonwealth witnesses’ testimony, the

jury carefully deliberated and considered the offenses charged, and returned

a verdict for the lesser offense of third-degree murder.     (See Trial Court

Opinion, 5/16/14, at 12-14).    Accordingly, Appellant’s first issue does not

merit relief.




                                     -7-
J-A30042-14



       In his second issue, Appellant challenges the weight of the evidence to

support his conviction. (See Appellant’s Brief, at 38-41).5 He claims that

the jury ignored or failed to give adequate weight to certain evidence that

was favorable to him, and he again argues that the Commonwealth’s

witnesses were not credible. (See id.). This issue lacks merit.

       Our standard of review is as follows:

             The finder of fact is the exclusive judge of the weight of
       the evidence as the fact finder is free to believe all, part, or none
       of the evidence presented and determines the credibility of the
       witnesses.

              As an appellate court, we cannot substitute our judgment
       for that of the finder of fact. Therefore, we will reverse a jury’s
       verdict and grant a new trial only where the verdict is so
       contrary to the evidence as to shock one’s sense of justice. A
       verdict is said to be contrary to the evidence such that it shocks
       one’s sense of justice when the figure of Justice totters on her
       pedestal, or when the jury’s verdict, at the time of its rendition,
       causes the trial judge to lose his breath, temporarily, and causes
       him to almost fall from the bench, then it is truly shocking to the
       judicial conscience.

             Furthermore, where the trial court has ruled on the weight
       claim below, an appellate court’s role is not to consider the
       underlying question of whether the verdict is against the weight
       of the evidence. Rather, appellate review is limited to whether
       the trial court palpably abused its discretion in ruling on the
       weight claim.


____________________________________________


5
  Appellant preserved this issue by raising it in his post-sentence motion.
(See Post-Sentence Motion, 12/02/13, at 3); see also Pa.R.Crim.P.
607(A)(3).




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J-A30042-14


Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and quotation marks omitted). When reviewing a weight of

the evidence claim, this Court carefully considers the findings and reasons

advanced by the trial court, because the trial judge had the opportunity to

hear and see the evidence presented. See Commonwealth v. Brown, 48

A.3d 426, 432 (Pa. Super. 2012), appeal denied, 63 A.3d 1243 (Pa. 2013).

        Here, the trial court determined:

        Based on the evidence presented at trial, this court was not
        inclined to upset the jury’s verdict after they were presented
        with sufficient evidence and thoughtfully deliberated. . . .

              . . . The jury made credibility determinations when
        presented with conflicting and inconsistent testimony.   The
        verdict was not so contrary to the evidence as to shock one’s
        sense of justice. . . .

(Trial Ct. Op., at 14) (most capitalization omitted).

        After review of the record, we cannot conclude that the court’s

decision constituted a palpable abuse of discretion.      See Boyd, supra at

1275.     The jury, as finder of fact, while passing upon the credibility of

witnesses and the weight of the evidence produced, was free to believe all,

part, or none of the evidence.     See id. at 1274.     Accordingly, Appellant’s

weight claim does not merit relief.

        In his third issue, Appellant argues that the trial court erred by

permitting the Commonwealth to introduce evidence of his prior bad act of

drug dealing.      (See Appellant’s Brief, at 41-43).      He claims that this

evidence was inadmissible under the general rule set forth in Pennsylvania

                                      -9-
J-A30042-14


Rule   of Evidence    404(b)(1), and    that   the   Commonwealth failed to

demonstrate the applicability of any exception set forth in Rule 404(b)(2).

(See id. at 41-42).      Appellant maintains that the court’s admission of

evidence indicating he may have been a drug dealer in the past “misguided

the jury to believe that [he] has the criminal propensity to commit the

current crime.” (Id. at 43). We disagree.

       “Rulings on the admissibility of evidence are within the discretion of

the trial judge, and such rulings form no basis for a grant of appellate relief

absent an abuse of discretion.” Commonwealth v. Powell, 956 A.2d 406,

419 (Pa. 2008), cert. denied, 556 U.S. 1131 (2009) (citation omitted).

       . . . [E]vidence of crimes [, wrongs, or acts] other than the one
       in question is not admissible solely to show the defendant’s bad
       character or propensity to commit crime.           [S]ee Pa.R.E.
       404(b)(1). (providing that “[e]vidence of a crime, wrong, or
       other act is not admissible to prove a person’s character in order
       to show that on a particular occasion the person acted in
       accordance with the character”). Nevertheless, “[t]his evidence
       may be admissible for another purpose, such as proving motive,
       opportunity, intent, preparation, plan, knowledge, identity,
       absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). In
       order for evidence of prior bad acts to be admissible as evidence
       of motive, the prior bad acts must give sufficient ground to
       believe that the crime currently being considered grew out of or
       was in any way caused by the prior set of facts and
       circumstances. Additionally, evidence of other crimes may be
       admitted where such evidence is part of the history of the case
       and forms part of the natural development of the facts.

Commonwealth v. Ferguson, 2015 WL 49438, at *3 (Pa. Super. filed Jan.

5, 2015) (case citations and some quotation marks omitted). “In weighing

whether evidence of prior bad acts will be admissible, however, the trial


                                     - 10 -
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court must still weigh the relevance and probative value of the evidence

against the prejudicial impact of that evidence.”           Commonwealth v.

Dowling, 883 A.2d 570, 578 (Pa. 2005), cert. denied, 549 U.S. 838 (2006)

(citation omitted); see also Pa.R.E. 404(b)(2).

      Here, upon review, we conclude that the trial court did not abuse its

discretion in admitting evidence of Appellant’s prior drug dealing.          See

Powell, supra at 419. The evidence was offered not to show Appellant’s

propensity to commit crime, but in the context of establishing his motive for

shooting Jeter, a rival drug dealer who supplied crack to the same

individuals   Appellant    supplied.     See    Pa.R.E.   404(b)(2);   see   also

Commonwealth v. Fisher, 769 A.2d 1116, 1128 (Pa. 2001), cert. denied,

535 U.S. 906 (2002) (concluding that court properly allowed testimony

regarding appellant’s prior drug-dealing activities offered to establish his

motive for killing).      Evidence showing that Appellant routinely provided

drugs to Comito also formed part of the natural development of the facts

and history of this case, see Ferguson, supra at *3; Appellant’s

involvement in drug dealing was the reason Comito contacted him on the

night of Jeter’s murder.

      Furthermore, the trial court instructed the jury immediately following

the testimony, and at the conclusion of trial, regarding the proper

consideration to give the prior bad acts evidence so that jurors would not

regard it as evidence of Appellant’s general bad character. (See N.T. Trial,


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J-A30042-14


8/06/13, at 105-06; N.T. Trial, 8/08/13, at 110-11).         These instructions,

which the jury is presumed to have followed, eliminated any risk of unfair

prejudice.     See Commonwealth v. Burno, 94 A.3d 956, 977 (Pa. 2014)

(stating juries are presumed to follow trial court’s instructions); see also

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009), cert.

denied,      559   U.S.    1111   (2010)   (concluding   cautionary   instructions

ameliorated any undue prejudice caused by introduction of prior bad acts

evidence). Accordingly, Appellant’s third issue does not merit relief.

          In his fourth issue, Appellant claims that the trial court erroneously

permitted the Commonwealth to introduce photographs depicting Jeter’s

face and body into evidence. (See Appellant’s Brief, at 43-45). Specifically,

Appellant challenges the admission of three photographs showing the

victim’s body at the crime scene, and four photographs depicting his body at

the autopsy (Commonwealth Exhibits 4, 6, 13, and 17-20). (See id. at 44).

Appellant argues that the pictures are gruesome and inflammatory and the

court should have excluded them because they lacked essential evidentiary

value.      (See id.).    He asserts that any evidentiary value the photographs

may have had was outweighed by the likelihood that they would inflame the

passions of the jury. (See id.). This issue is waived and would not merit

relief.




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J-A30042-14


      “A defendant must make a timely and specific objection at trial or face

waiver of h[is] issue on appeal.” Commonwealth v. Olsen, 82 A.3d 1041,

1050 (Pa. Super. 2013) (citations omitted).

      Here, Appellant does not direct us to where in the substantial record

the Commonwealth presented the photographs of the victim, but the

Commonwealth does.         (See Appellant’s Brief, at 43-45; Commonwealth’s

Brief, at 19). Our review of the relevant part of the trial transcripts reflects

that the defense offered no objection to the admission of the photographs.

(See N.T. Trial 8/05/13, at 8-11, 50-51, 55-56; N.T. Trial 8/06/13, at 43-

46). “Such failure to offer a timely and specific objection results in waiver of

this claim.”     Commonwealth v. Bruce, 916 A.2d 657, 671 (Pa. Super.

2007), appeal denied, 932 A.2d 74 (Pa. 2007) (citation omitted) (concluding

that appellant waived challenge to admission of photographs where defense

offered no objection to their admission at trial).

      Moreover, even if Appellant had properly preserved this issue, it would

not merit relief.

           We will affirm a trial court’s admission of photographs
      absent an abuse of discretion. Further,

                     When     considering  the    admissibility of
               photographs of a homicide victim, which by their
               very nature can be unpleasant, disturbing, and even
               brutal, the trial court must engage in a two-step
               analysis:

                    First a [trial] court must determine whether
               the photograph is inflammatory. If not, it may be
               admitted if it has relevance and can assist the jury’s

                                       - 13 -
J-A30042-14


            understanding of the facts. If the photograph is
            inflammatory, the trial court must decide whether or
            not the photographs are of such essential evidentiary
            value that their need clearly outweighs the likelihood
            of inflaming the minds and passions of the jurors.

Commonwealth v. Spell, 28 A.3d 1274, 1279 (Pa. 2011) (citations

omitted).

      Here, the trial court determined that the photographs did not depict

gruesome damage to the victim’s body and were not inflammatory.         (See

Trial Ct. Op., at 17).   It stated that the “photographs were admissible as

relevant evidence . . . [and] were necessary to assist the jury in

understanding the facts of this case[.]” (Id.). Further, the court “reduced

any potential for prejudice caused by the photographs by . . . instructing the

jury it should not allow the photographs to inflame it.”     Spell, supra at

1280 (citation omitted); see also Burno, supra at 977; (N.T. Trial,

8/08/13, at 112). After review of the photographs, we discern no abuse of

discretion in the trial court’s decision to admit them. See Spell, supra at

1279. Accordingly, Appellant’s fourth issue would not merit relief, even if it

we did not deem it waived.

      In Appellant’s fifth and final issue, he challenges the discretionary

aspects of his sentence. (See Appellant’s Brief, at 45-47). Specifically, he

claims that the trial court impermissibly relied on his lack of remorse in

sentencing him to the statutory maximum sentence, under circumstances

where he continues to maintain his innocence. (See id. at 29, 46-47). He



                                    - 14 -
J-A30042-14


also claims that the sentence constitutes too severe a punishment because

the court failed to consider mitigating factors such as his age and capacity

for rehabilitation. (See id. at 46). This issue does not merit relief.

      Our standard of review in sentencing matters 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. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to 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.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).

      However, “[t]he right to appeal the discretionary aspects of a sentence

is not absolute.”   Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.

Super. 2011) (citation omitted).

             Before we reach the merits of this [issue], we must engage
      in a four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence [See Pa.R.A.P. 2119(f)]; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code. . . .
      [I]f the appeal satisfies each of these four requirements, we will
      then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).




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      In the instant case, Appellant has complied with the first three

requirements because he filed a timely notice of appeal, preserved his claim

in a timely post-sentence motion, and included a Rule 2119(f) statement in

his brief. See id.

      With respect to the fourth requirement:

            The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis.         A
      substantial question exits 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.

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

denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).

      “[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Downing, 990 A.2d 788, 794

(Pa. Super. 2010) (citation omitted). Accordingly, we conclude Appellant’s

argument that the trial court failed to give adequate consideration to

mitigating factors such as his age and ability to rehabilitate does not present

a substantial question appropriate for our review. See id. However, “[t]his

Court has recognized that a claim that a sentence is excessive because the

trial court relied on an impermissible factor raises a substantial question.”

Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009), appeal

denied, 981 A.2d 217 (Pa. 2009) (citation omitted). Therefore, we turn to


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J-A30042-14


the merits of Appellant’s claim that his sentence is excessive because the

court impermissibly relied on his lack of remorse.

      “[I]t is undoubtedly appropriate for a trial court to consider a

defendant’s lack of remorse as a factor at sentencing, provided that it is

specifically considered in relation to protection of the public, the gravity of

the offense, and the defendant’s rehabilitative needs.” Commonwealth v.

Bowen, 975 A.2d 1120, 1125 (Pa. Super. 2009) (citation omitted).

      Here, at the sentencing hearing, the court heard a victim impact

statement and argument from both parties, and it acknowledged the content

of the PSI report. (See N.T. Sentencing, 11/22/13, at 3-10). It explained

its rationale for the sentence as follows:


             . . . I have given this considerable thought since the day of
      your trial. While it wasn’t a long trial[,] it was very involved []
      and I was taken by the fact I was never involved in a homicide
      trial where the defendant had as much support throughout the
      trial as you did. . . . [E]very day you had 5 to 6 to 7 people
      come here on your behalf. That speaks volumes for you. I don’t
      think that you are without value.             I think you can be
      rehabilitated but in the absence of your admission to this crime
      I’m going to be forced, anything less than 20 to 40 years would
      not be warranted. You are convicted of a drug killing in the City
      of Easton.       The evidence was clear that you knew of a
      transaction by another individual in your turf and you killed that
      person. I don’t see any possible way for me to impose anything
      but the maximum sentence given those facts . . . . Had there
      been any other redeeming factors here other than I don’t take
      that lightly with his family support, I watched him through this
      trial and his respectful demeanor and the way he comported
      himself, but without—he has not taken blame for this yet. He
      professes his innocence and I understand that. But based on the
      evidence before me I have a drug killing that occurred, it was
      deliberate, in the City of Easton, Northampton County,

                                     - 17 -
J-A30042-14


       Pennsylvania. The taxpayers of this county will be outraged if I
       don’t impose the maximum sentence.         And I believe the
       maximum sentence is warranted here based on these facts.

(Id. at 11-12).

       Thus, the record reflects that the trial court did not justify its statutory

maximum sentence based solely on Appellant’s lack of remorse. Rather, the

court considered this factor as one of numerous sentencing factors, and it

specifically acknowledged Appellant’s right to maintain his innocence.            The

court’s comments at sentencing indicate that, after observing Appellant

throughout the trial, it considered his lack of remorse “in relation to

protection of the public, the gravity of the offense, and [his] rehabilitative

needs.” Bowen, supra at 1125.                  Accordingly, we conclude that the trial

court did not abuse its discretion in imposing Appellant’s sentence.              See

Clarke, supra at 1287.          Appellant’s final issue on appeal does not merit

relief.6

       Judgment of sentence affirmed.
____________________________________________


6
  We note that a review of the record belies Appellant’s claim that the trial
court failed to consider mitigating circumstances such as his age and ability
for rehabilitation. (See Appellant’s Brief, at 46). The court specifically took
note of Appellant’s young age and his capacity for rehabilitation. (See N.T.
Sentencing, 11/22/13, at 9, 11). Further, because the court reviewed a PSI
report, “we can assume [it] was aware of relevant information regarding
[Appellant’s] character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Rhoades 8 A.3d 912,
919 (Pa. Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied,
132 S. Ct. 1746 (2012) (citation and internal quotation marks omitted).
Therefore, even if we were to determine that Appellant’s claim did raise a
substantial question, we would find no merit to it.




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J-A30042-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




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