J. A20040/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
KENNETH CARL CRAWFORD, III,              :        No. 1768 MDA 2018
                                         :
                         Appellant       :


         Appeal from the Judgment of Sentence Entered April 30, 2018,
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No. CP-40-CR-0001480-2000


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 14, 2020

        Kenneth Carl Crawford, III, appeals from the April 30, 2018 aggregate

judgment of sentence of 52 years to life imprisonment imposed after he was

resentenced following the grant of post-conviction collateral relief1 pursuant

to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana,

136 S.Ct. 718 (2016).2      After careful review, we affirm the judgment of

sentence.




1   See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

2 In Miller, the United States Supreme Court recognized a constitutional right
for juveniles, holding that “mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition against ‘cruel and unusual punishments.’” Miller, 567 U.S. at 465.
In Montgomery, the Supreme Court held that its rule announced in Miller
applies retroactively on collateral review. Montgomery, 136 S.Ct. at 736.
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      A prior panel of this court set forth the relevant facts of this case as

follows:

            In July 1999, [appellant], then 15 years of age, was
            traveling with a companion, David Lee Hanley, when
            they found themselves at the Pilot Truck Stop near the
            City of Hazelton, Luzerne County. They were, at the
            time and place, looking for a ride to Georgia.
            [Appellant] and Hanley were picked up by Diane Algar
            (Algar) and Jose Molina (Molina) and taken to the
            Algar trailer at Paradise Campground.        The two
            remained as guests for approximately two days,
            during which time they were fed and entertained by
            Algar and Molina. On the morning of the second day
            [July 19, 1999], Algar and Molina were shot and killed
            inside the trailer. [Appellant] and Hanley left the
            scene in Algar’s vehicle.

            The investigation into the killings led Pennsylvania
            State Police to search for two hitchhikers heading to
            Georgia.     Following a segment on television’s
            “America’s Most Wanted,” the authorities received a
            tip which led to the discovery of the Algar vehicle in
            Winchester, Virginia, where it was abandoned by
            [appellant] and Hanley.      At that point, the two
            boarded a bus bound for Rome, Georgia, but they
            decided to split up in Tennessee. Hanley continued
            south, while [appellant] proceeded toward the
            Midwest.

            ....

            [Appellant], when discovered, was being detained in
            a juvenile detention center in Missouri for an Illinois
            assault offense. [He pleaded guilty to that offense,
            which predated the present offenses, and was
            sentenced to a juvenile facility at Joliet, Illinois.]
            Eventually,    [appellant]    was    extradited      to
            Pennsylvania.

Commonwealth        v.   Crawford,    No.   479    MDA    2001,   unpublished

memorandum at 1-2 (brackets in original) (Pa.Super. filed May 30, 2002).


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      On January 24, 2001, a jury found appellant guilty of two counts each

of first-degree murder, criminal conspiracy, and aggravated assault, and one

count each of robbery, theft by unlawful taking or disposition, and attempted

theft.3 Appellant was sentenced to two consecutive terms of life imprisonment

without the possibility of parole (“LWOP”) on February 27, 2001. On May 30,

2002, a panel of this court affirmed appellant’s judgment of sentence, and

appellant did not seek allowance of appeal with our supreme court.        Id.

Between 2005 and 2014, appellant unsuccessfully litigated two separate PCRA

petitions.

      On March 24, 2016, appellant filed his third PCRA petition, arguing that

his   two    consecutive   LWOP   sentences   were   unconstitutional   under

Miller/Montgomery. As noted, the PCRA court granted appellant relief and

ordered that he be resentenced.        Following a three-day hearing, the

sentencing court resentenced appellant to an aggregate term of 52 years to

life imprisonment on April 30, 2018.4 In fashioning appellant’s sentence, the


318 Pa.C.S.A. §§ 2501(a), 903(a)(1), 2702(a)(1), 3701(a)(1), 3921(a), and
901(a), respectively.

4 Specifically, appellant was resentenced as follows:        26 years to life
imprisonment on Count 1 (first-degree murder – Victim 1); 26 years to life
imprisonment on Count 2 (first-degree murder – Victim 2), consecutive to
Count 1; 240 to 480 months’ imprisonment on Count 3 (criminal conspiracy),
concurrent to Count 1; 240 to 480 months’ imprisonment on Count 4 (criminal
conspiracy), concurrent to Count 3; 84 to 168 months’ imprisonment on
count 7 (robbery), consecutive to Count 4; 21 to 42 months’ imprisonment on
Count 8 (theft by unlawful taking or disposition), consecutive to Count 7; and
21 to 42 months’ imprisonment on Count 9 (attempted theft), consecutive to
Count 8.


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sentencing court granted appellant 6,569 days’ credit for time-served from

May 5, 2000 to April 30, 2018, and noted that appellant was not “permanently

incorrigible” nor incapable of rehabilitation. (See notes of testimony, 4/30/18

at 6.) Appellant filed a timely post-sentence motion to vacate or reconsider

his sentence, which was denied on June 22, 2018. On July 25, 2018, appellant

filed an untimely notice of appeal that was dismissed by this court for failure

to file a docketing statement, in accordance with Pa.R.A.P. 3517. Following

the reinstatement of his direct appeal rights nunc pro tunc, appellant filed

the instant appeal.5

      Appellant raises the following issues for our review:

            [I.]    Whether [appellant’s] aggregate sentences of
                    52 years to life (Counts 1 and 2) and of 50.5 to
                    101 years (Counts 3 through 9) are
                    unconstitutional de facto LWOP sentences that
                    violate the Eighth Amendment of the United
                    States Constitution and Article I, Section 13 of
                    the    Pennsylvania      Constitution    because
                    [appellant] is capable of rehabilitation and
                    [appellant’s] first opportunity for release under
                    either would come more than 16 years after
                    his undisputed life expectancy[?]

            [II.]   Whether the sentencing court violated
                    procedural protections required by the United
                    States and Pennsylvania Constitutions by
                    failing to make a finding as to [appellant’s] life
                    expectancy and to consider that finding while
                    crafting [appellant’s] sentence[?]

            [III.] Whether [appellant’s] maximum sentence of
                   life imprisonment exceeds the maximum

5  The record reflects        that   appellant    has   timely   complied   with
Pa.R.A.P. 1925(b).


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                    punishment allowed by statute because the
                    entire Pennsylvania sentencing scheme for
                    first- and second-degree murder was struck
                    down as unconstitutional and the only
                    remaining constitutional sentencing scheme for
                    [appellant] is the sentencing scheme for the
                    lesser included offense of third-degree murder,
                    [18 Pa.C.S.A.] § 1102(d), which has a
                    maximum statutory punishment of 40 years,
                    not life imprisonment[?]

            [IV.]   Whether the sentencing court was required to
                    give individualized consideration to the
                    proportionality of [appellant’s] maximum
                    sentence of life imprisonment to safeguard
                    [appellant’s]   rights  under    the   Eighth
                    Amendment of the United States Constitution
                    and Article I, Section 13 of the Pennsylvania
                    Constitution[?]

            [V.]    Whether [appellant’s] sentence is manifestly
                    excessive because the sentencing court
                    focused solely on the seriousness of
                    [appellant’s] offenses, failed to consider
                    mitigating factors (such as the extent of
                    [appellant’s] rehabilitation and the fact that
                    [appellant] does not pose a continuing threat
                    to the public), and failed to adequately explain
                    its reason for imposing a sentence where the
                    first opportunity for release would come more
                    than 16 years after [appellant’s] undisputed life
                    expectancy[?]

Appellant’s brief at 6-7 (emphasis in original). For ease of discussion, we have

elected to renumber appellant’s issues and will address them in a different

order than originally presented in his appellate brief.

                                        I.

      Appellant first contends that his aggregate judgment of sentence of

52 years to life imprisonment constituted an unconstitutional de facto LWOP


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sentence “because [he] is capable of rehabilitation and [his] first opportunity

for release under either would come more than 16 years after his undisputed

life expectancy.” (Id. at 6, 24.) We disagree.

      “[A] claim challenging a sentencing court’s legal authority to impose a

particular   sentence   presents    a    question     of   sentencing   legality.”

Commonwealth v. Batts, 163 A.3d 410, 434-435 (Pa. 2017) (citations

omitted). “The determination as to whether a trial court imposed an illegal

sentence is a question of law; an appellate court’s standard of review in cases

dealing with questions of law is plenary.” Commonwealth v. Crosley, 180

A.3d 761, 771 (Pa.Super. 2018) (citation omitted), appeal denied, 195 A.3d

166 (Pa. 2018).

      Here, appellant’s aggregate judgment of sentence of 52 years to life

imprisonment was comprised of, inter alia, two consecutive terms of 26 years

to life imprisonment and is consistent with this court’s recent holdings in

Commonwealth       v.   Foust,     180   A.3d   416    (Pa.Super.   2018),   and

Commonwealth v. Bebout, 186 A.3d 462 (Pa.Super. 2018). Foust involved

a 17-year-old defendant who was convicted of two counts of first-degree

murder and resentenced pursuant to Miller/Montgomery to two consecutive

terms of 30 years to life imprisonment. Foust, 180 A.3d at 421. The Foust

court held that “a trial court may not impose a term-of-years sentence on a

juvenile convicted of homicide if that term-of-years sentence equates to a

de facto [life-without-parole] sentence unless it finds, beyond a reasonable



                                        -6-
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doubt, that the juvenile is incapable of rehabilitation.” Id. at 433. The Foust

court determined that term-of-years sentence of 30 years’ imprisonment did

not constitute a de facto LWOP sentence.        Id. at 438.    In reaching this

conclusion, the Foust court explicitly “decline[d] to draw a bright line in this

case delineating what constitutes a de facto LWOP sentence and what

constitutes a constitutional term-of-years sentence” and instead limited itself

to the facts of the case before it. Id. The Foust court further noted that “the

individual sentences,” rather than the aggregate sentence, “must be

considered when determining if a juvenile received a de facto LWOP

sentence.” Id. at 434.

      Bebout involved a 15-year-old defendant who was resentenced to

45 years to life imprisonment for second-degree murder and related offenses,

pursuant to Miller/Montgomery. Bebout, 186 A.3d at 468. The Bebout

court concluded that “[t]he key factor in considering the upper limit of what

constitutes a constitutional sentence,” as opposed to a de facto LWOP

sentence for a juvenile who was not deemed incapable of rehabilitation, is

whether there is “some meaningful opportunity to obtain release based

on demonstrated maturity and rehabilitation.”            Id. (citation omitted;

emphasis added). “To be meaningful or, at least, potentially meaningful, it

must at least be plausible that one could survive until the minimum release

date with some consequential likelihood that a non-trivial amount of time at

liberty awaits.” Id. In reaching this conclusion, the Bebout court reasoned



                                     -7-
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that although the 45-years-to-life sentence “falls between the ‘clearly’

constitutional and unconstitutional parameters suggested by the Foust

Court[,]” the defendant failed to show that a sentence that authorized his

release at age 60 was the functional equivalent of a life-without-parole

sentence. Id. at 467.

      Likewise, in the instant matter, appellant has failed to demonstrate that

his judgment of sentence does not afford him a meaningful opportunity for

release or that he has no plausible chance of survival until his minimum

release date. While appellant will not be eligible for parole until age 68, albeit

older than the defendant in Bebout, appellant has not shown any significant

difference between the ages at the earliest possible point of release that would

distinguish his case. Accordingly, we decline to find that appellant’s sentence

constituted a de facto LWOP sentence.

                                       II.

      In a related claim, appellant contends that the sentencing court erred

“by failing to make a finding as to [appellant’s] life expectancy and to consider

that finding while crafting [his] sentence.” (Appellant’s brief at 6, 46.) In

support of this contention, appellant relies on the recent Third Circuit case,

United States v. Grant, 887 F.3d 131 (3d Cir. 2018), rehearing en banc

granted and opinion vacated, 905 F.3d 285 (3d Cir. 2018).

      In Grant, the United States Court of Appeals for the Third Circuit

discussed de facto LWOP sentences and concluded that a judge is required



                                      -8-
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to impose a sentence “so that a juvenile offender who is capable of reform is

not sentenced to a term-of-years beyond his or her expected mortality.” Id.

at 149. The Grant court held that a sentencing court is required to conduct

an individualized evidentiary hearing and make factual findings as to a

defendant’s life expectancy, following consideration of “any evidence made

available by the parties that bears on the offender’s mortality, such as medical

examinations, medical records, family medical history, and pertinent expert

testimony.” Id. at 150.

      Upon review, we find that appellant is not entitled to relief on this claim.

Contrary to appellant’s contention, neither the United States Supreme Court

nor the Pennsylvania Supreme Court have mandated that a sentencing court

make factual findings as to a defendant’s life expectancy prior to resentencing

under Miller/Montgomery. Grant is clearly not binding upon this court and,

in any event, was recently vacated and accepted for en banc consideration.

Accordingly, appellant’s second claim must fail.

                                   III. & IV.

      Appellant next argues that because “the entire Pennsylvania sentencing

scheme    for   first-and-second-degree     murder     was   struck    down    as

unconstitutional[,]” the sentencing court should have resentenced him for

first-degree murder in accordance with the sentencing scheme for the lesser

included offense of third-degree murder, which has a maximum statutory

punishment of 40 years.      (Appellant’s brief at 7, 57.)     Appellant further



                                      -9-
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contends that his mandatory maximum sentence of life in prison, or “life tail,”

does not comport with the holdings in Miller/Montgomery that resentenced

juveniles be given individualized sentences and violates the prohibition against

“cruel and unusual punishment” set forth in the Eighth Amendment to the

United States Constitution. (Id. at 7, 54.) We disagree.

      These issues were addressed by our supreme court in Batts and more

recently by this court in Foust and Commonwealth v. Blount, 207 A.3d 925

(Pa.Super. 2019), appeal denied, 218 A.3d 1198 (Pa. 2019). Specifically,

the Blount court stated as follows:

             For those defendants [convicted of first or
             second-degree murder prior to June 25, 2012,] for
             whom the sentencing court determines a [LWOP]
             sentence is inappropriate, it is our determination here
             that they are subject to a mandatory maximum
             sentence of life imprisonment as required by Section
             1102.1(a), accompanied by a minimum sentence
             determined by the common pleas court upon
             resentencing[.]

Blount, 207 A.3d at 938, citing Commonwealth v. Seskey, 170 A.3d 1105,

1108 (Pa.Super. 2017), quoting Batts, 163 A.3d at 421 (some brackets in

original).

      As noted by the Foust court, in light of our supreme court’s decision in

Batts, “there was valid statutory authority to impose a maximum sentence of

life imprisonment for [a] first-degree murder conviction.” Foust, 180 A.3d at

430. Contrary to appellant’s contention, this court has explicitly held that

such mandatory maximums do not violate the Eighth Amendment’s ban on



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cruel and unusual punishment or the mandates of individualized sentencing.

See Commonwealth v. Olds, 192 A.3d 1188, 1197-1198 (Pa.Super. 2018)

(holding that, the imposition of mandatory maximum sentence of life

imprisonment for a juvenile defendant convicted of second-degree murder

prior to Miller was constitutional and did not violate Eighth Amendment’s ban

on cruel and unusual punishment), appeal denied, 199 A.3d 334 (Pa. 2018);

Seskey, 170 A.3d at 1107-1108 (holding that, the trial court was required to

impose a mandatory maximum sentence of life imprisonment when it

resentenced a juvenile defendant convicted of first-degree murder prior to

Miller). Accordingly, appellant’s claims must fail.

                                      V.

      Having determined that appellant’s sentence is not illegal, we turn to

his remaining claim that the sentencing court abused its discretion by:

(1) “focus[ing] solely on the seriousness of [his] offenses” and (2) failing to

consider various mitigating sentencing factors in imposing a “manifestly

excessive” sentence, including “the extent of [appellant’s] rehabilitation and

the fact that [appellant] does not pose a continuing threat to the public.”

(Appellant’s brief at 6, 51.) Appellant avers that “[t]he sentencing court []

abused its discretion by imposing an excessive sentence without fully

explaining [whether it] adequately assessed the sentencing factors set forth

in Miller.” (Id. at 53.)

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be


                                    - 11 -
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            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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015)

      Where an appellant challenges the discretionary aspects of his sentence,

as is the case here, the right to appellate review is not absolute.        See

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Rather, an

appellant challenging the discretionary aspects of his sentence must invoke

this court’s jurisdiction by satisfying the following four-part test:

            (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; and (4) whether
            the concise statement raises a substantial question
            that the sentence is appropriate under the sentencing
            code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Instantly, the record reveals that appellant has satisfied these

prerequisites. Appellant filed a timely notice of appeal and preserved his issue

in a post-sentence motion. Appellant has also included a statement in his

brief that comports with the requirements of Pa.R.A.P. 2119(f).           (See



                                      - 12 -
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appellant’s brief at 20-24.)    Additionally, appellant presents a substantial

question for our review. A “claim that the sentence is manifestly excessive,

inflicting too severe a punishment, . . . present[s] a substantial question.

Moreover, the sentencing court’s failure to set forth adequate reasons for the

sentence imposed also raises a substantial question.” Commonwealth v.

Hicks, 151 A.3d 216, 227 (Pa.Super. 2016) (citations omitted), appeal

denied, 168 A.3d 1287 (Pa. 2017). Accordingly, we may review the merits

of appellant’s claim.

      In situations where the Commonwealth requests a sentence LWOP, the

sentencing court must consider the statutory sentencing factors set forth in

18 Pa.C.S.A. 1102.1(d) (“the Miller factors”) on the record, prior to imposing

sentence. Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019).

Specifically, as our supreme court stated in Batts, compliance with Miller

requires consideration of the following:

            [A]t minimum it should consider a juvenile’s age at
            the time of the offense, his diminished culpability and
            capacity for change, the circumstances of the crime,
            the extent of his participation in the crime, his family,
            home and neighborhood environment, his emotional
            maturity and development, the extent that familial
            and/or peer pressure may have affected him, his past
            exposure to violence, his drug and alcohol history, his
            ability to deal with the police, his capacity to assist his
            attorney, his mental health history, and his potential
            for rehabilitation.

Batts, 163 A.3d at 421 n.5 (citations omitted).




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      However, where, as here, the Commonwealth does not give notice of its

intention to seek an LWOP sentence and the sentencing court sentences “a

juvenile offender to life with the possibility of parole, traditional sentencing

considerations apply[,]” and the sentencing court considers the factors set

forth in 42 Pa.C.S.A § 9721(b). Batts, 163 A.3d at 460 (citation omitted;

emphasis added). Section 9721(b) provides that the sentencing court shall

fashion a sentence “that is consistent with the protection of the public, the

gravity of the offense as it relates to the impact on the life of the victim and

on the community, and the rehabilitative needs of the defendant.”

42 Pa.C.S.A. § 9721(b).

      Here, the sentencing court conducted a comprehensive evidentiary

hearing prior to appellant’s resentencing that commenced on January 29,

2018, and concluded on January 31, 2018.           Our review of the record

establishes that the sentencing court considered and weighed numerous

factors in fashioning appellant’s sentence, including both the “Miller factors”

and the traditional sentencing factors set forth in Section 9721(b); the

testimony and exhibits presented by the parties at the three-day evidentiary

hearing; appellant’s troubled childhood and age at the time of the offense;

and the gravity of the crime. Contrary to appellant’s contention, the record

further reflects that the sentencing court took into consideration the

life expectancy report completed by Dr. Evelyn J. Paterson and “[appellant’s]

rehabilitative accomplishments and achievements while under the care of the



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department of corrections.”     (Sentencing court opinion, 11/14/18 at 15,

17-18.)

      At the April 30, 2018 resentencing hearing, the sentencing court stated

the following rationale in support of appellant’s aggregate term of 52 years to

life imprisonment:

            Sentences in Pennsylvania must be individualized.
            The Court has considered inter alia the sentencing
            memorandum submitted by the parties, the
            presentence investigation [(“PSI”)] report, the trial
            transcript, and all testimony and exhibits introduced
            at the resentencing evidentiary hearing, along with
            the guidance of Section 1102.1(a) of the crimes code,
            and traditional sentencing considerations found in
            Section 9721.1 that the Court shall follow the general
            principle that the sentence imposed should call for
            confinement, that it’s consistent with the protection of
            the public, gravity of the offense as it relates to the
            impact on the life of the victim and on the
            community[,] and the rehabilitative needs of
            [appellant].

            The Court is well aware that [appellant] was 15 at the
            time of the crime and the circumstances of [his]
            childhood,      along    with     his     rehabilitative
            accomplishments and achievements while under the
            care of the Department of Corrections. The Court is
            also mindful of the senseless, tragic murders of
            Diana Algar and Jose Molina, along with all attending
            circumstances of their deaths, and the recognized
            principle that all murders are heinous in nature.

            The Court has not found [appellant] permanently
            incorrigible as understood in existing law and
            recognizes an offender must be held accountable and
            serve a sentence commensurate with those
            committed acts in accordance with existing law. The
            Court also notes it reviewed actuarial life expectancy
            data, along with estimates and averages of life



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             expectancy as     introduced     in   the   report   of
             Dr. [Paterson].

             The Court further acknowledges that as there is a
             possibility of rehabilitation, [appellant] must be
             provided some meaningful opportunity to obtain a
             release based on demonstrated maturity and
             rehabilitation. A state is not required to guarantee
             eventual freedom.

Notes of testimony, 4/30/18 at 5-6 (emphasis added).

      Additionally, the sentencing court was in possession of a PSI report and

indicated that it reviewed it. (Sentencing court opinion, 11/14/18 at 14; see

also notes of testimony, 4/30/18 at 5.) Where the trial court has the benefit

of a PSI report, “we shall . . . presume that the sentencing judge was aware

of relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation omitted), appeal

denied, 95 A.3d 275 (Pa. 2014). Accordingly, for all the foregoing reasons,

we find that appellant’s challenges to the discretionary aspects of his sentence

must fail.

      Judgment of sentence affirmed.



      Gantman, P.J.E. did not participate in the consideration or decision of

this case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/14/2020




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