J-S37026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDRE LEWIS                                :
                                               :
                       Appellant               :   No. 1198 EDA 2017

         Appeal from the Judgment of Sentence Entered March 10, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010726-2014


BEFORE:      OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 08, 2018

        Andre Lewis appeals from the judgment of sentence imposed following

his conviction for Intimidation of a Witness. Lewis argues that there was

insufficient evidence to support the conviction, the trial court erred in

overruling his objections to prosecutorial misconduct, and his sentence was

excessive. We affirm.

        Lewis was tried before a jury in March 2017 on the charges of

Intimidation of a Witness, Aggravated Assault, Terroristic Threats, and

Possession of an Instrument of Crime.1 The victim, a former paramour of

Lewis, testified that Lewis assaulted her in front of her home and threatened

her with a knife. Her mother called 911, and when the police arrived, they

____________________________________________


*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 4952(a)(1), 2702(a)(1), 2706(a)(1), and 907(a).
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escorted the victim to the place where they had apprehended Lewis, so that

the victim could identify him. The victim testified that after she identified

Lewis, “as [the police hand]cuffed [Lewis] and put him on the ground, he told

me, excuse my French[,] ‘Bitch, don’t—I hope you don’t come to court.’” Notes

of Testimony, 3/8/17 (Trial), at 47. A police officer testified that when he was

arrested, Lewis originally provided a false name to police and was “belligerent”

and shouting threats at the victim. Id. at 104-06. Specifically, the officer

recalled that Lewis told the victim, “If you show up to court, bitch, I’m gonna

hurt you.” Id. at 107. Another officer similarly testified that Lewis said “Bitch,

you better not show up to court.” Id. at 122. The Commonwealth also

introduced photographs of the victim’s injuries and the testimony of the

victim’s mother. Lewis testified, and denied assaulting or threatening the

victim.

      Some of the testimony focused on an envelope that Lewis received while

in prison that the defense suggested the victim sent to him. When Lewis’s

attorney cross-examined the victim, he showed her the envelope, and the

victim denied writing or sending it, pointing out that there was no return

address, that it was not written in her handwriting, and that she did not use

the nickname for Lewis to which the letter was addressed. Lewis testified that

the top portion of the envelope—where the return address and stamp would

go—was missing because prison officials routinely remove that portion when

they received and opened mail, and that the envelope was not of the sort he




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could obtain himself while in the prison. The envelope was not entered into

evidence.

      Lewis’s counsel argued to the jury that the photographs of the victim’s

injuries did not align with the severity of her testimony of the incident and

that the victim was not credible for other reasons, such as inconsistency in

her grand jury testimony. Lewis’s counsel also claimed that the officers who

testified to the threats were not credible because they had not included the

verbal threats in their initial report and did not remember all of the details

surrounding the arrest. Regarding the envelope, Lewis’s counsel argued that

Lewis did not send it to himself from prison, and pointed out that if Lewis had

been trying to forge a letter from the victim, he would have included a bogus

return address on a portion of the envelope that would not have been routinely

removed by prison authorities.

      The    prosecution    generally    argued   during    closing   that   the

Commonwealth’s witnesses and evidence were credible and consistent. The

prosecutor stated that “[defense counsel was] really stretching [it]” when he

pointed out a discrepancy in an officer’s testimony, to which Lewis objected.

N.T., 3/9/17 (Closing Arguments), at 55. The Commonwealth also repeatedly

stressed that Lewis was not a credible witness. Relevant to this appeal, when

recounting that Lewis had cried while an officer was testifying during trial, the

prosecutor stated, “It’s too bad the Oscars were a couple of weeks ago

because [Lewis would] be up for an [A]cademy [A]ward.” Id. at 51. The

Commonwealth also argued that the envelope that Lewis received in prison

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was fake, and “a cynical attempt by [Lewis] to perpetrate a fraud” on the jury.

Id. at 50. Lewis objected to both of these statements as well. The jury

convicted Lewis of Intimidation of a Witness, but found him not guilty of the

other charges.

       At sentencing, the court offered both Lewis and the Commonwealth the

option of delaying sentencing in order to conduct a pre-sentence investigation

and mental health evaluation. N.T., 3/10/17 (Sentencing), at 5. Both Lewis

and the Commonwealth declined, and when the court asked Lewis if he wanted

to be sentenced that day, Lewis responded, “Yes.” Id.

       Defense argued that Lewis told the victim not to come to court because

he was angry that the victim was wrongfully accusing him of assault and that

if Lewis received a sentence of probation, there would be little chance of

recurrence of the offense, since Lewis would be unlikely to interact with the

victim in the future. Id. at 10-11. The Commonwealth argued that Witness

Intimidation is a significant problem in Philadelphia, and that the victim had

been terrified to come to court. Id. at 12-14. The Commonwealth also

recounted the facts of Lewis’s prior conviction for terrorist threats, where

Lewis had told a police officer that he was going to “blow [his] head off,” and

for which Lewis’s conviction in the instant case constituted a violation of the

terms of his probation. Id. at 14-15.2 The prosecutor stated that Lewis had



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2 The court was sentencing Lewis for the violation of probation at the same
time that it was sentencing Lewis on the conviction in the instant case.

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told the officer, “I’m just going to cry in front of the judge and get off like I

did last time.” Id.

      Lewis exercised his right to allocution, emphasizing that he has been in

the custody of Pennsylvania’s Department of Human Services since the age of

nine and has no family and little formal education. Id. at 17, 20. He also

stated that he had been working on obtaining his General Educational

Development diploma, playing in a basketball league, and working for a

cleaning company before he was arrested. Id. at 18-20. He maintained he did

not intend to keep the victim from coming to court, that “people make

mistakes,” and that sending him to serve more prison time would “do nothing

but make [him] a worse person.” Id. at 19-21.

      The court sentenced Lewis to eight to 16 years’ incarceration. The court

stated that it had considered Lewis’s prior record score, the offense gravity

score, the guidelines range, the trial testimony, Lewis’s history and character,

and his allocution. Id. at 21. The court articulated that it was concerned with

“the lack of responsibility he has taken for his actions, [and] the fact he is

very concerned with himself and does not seem to understand that in society,

it’s not just about who you are[,] it’s about how you treat other people.” Id.

at 21-22.

      Lewis filed a Motion to Reconsider his sentence. At the hearing on the

Motion, his counsel complained that the court had sentenced Lewis without a

pre-sentence investigation report, and that the sentence was above the

aggravated range of the Sentencing Guidelines. Lewis’s counsel requested a

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resentencing in order “to explore different options and maybe change [the

sentencing judge’s] mind as to why the sentence should not be as high as it

is.” N.T., 3/22/17 (Motion), at 4. The court denied the Motion, and stated that

“[a]ny lesser sentence would depreciate the seriousness of the crime that

[Lewis] was convicted of,” and that its sentence was designed to deter others

from committing a similar crime. Id. at 4-6. The court noted that Lewis

committed intimidation of a witness “in the presence of her family members

[and] police officers,” and stated that it considered Lewis’s “mental,

emotional, and previous psychological problems,” his prior arrests, and the

injuries to the victim. Id. at 5. The court found that Lewis was “a poor

candidate for rehabilitation” and that he “showed no remorse during the

course of his allocution.” Id.

      Lewis filed a timely Notice of Appeal, and raises the following issues:

      (A) Was there insufficient evidence to find [Lewis] guilty of
      witness intimidation[?]

      (B)   The    prosecutor   committed     misconduct   when    he
      mischaracterized the evidence and mislead the jury as to
      inferences it could draw when discussing a letter Lewis had
      “someone write” to him while [Lewis] was in jail and that Lewis
      was “perpetrating a fraud” in doing so.

      (C) The trial court failed to sustain an objection or give a
      cautionary instruction to the jury when the prosecutor committed
      misconduct when commenting on Lewis’ testimony[.] He stated,
      “It’s too bad the Oscars were a couple of weeks ago[,] because
      [Lewis] would be up for an Academy Award.”

      (D) The trial court failed to sustain an objection or give a
      cautionary instruction to the jury when the prosecutor committed
      misconduct when stating that defense counsel was “really

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       stretching it” in his closing argument when he commented on
       evidence in the case.

       (E) The court abused its discretion when it sentenced Lewis to a
       period of incarceration of 8-16 years based on the single cha[r]ge
       of Witness Intimidation[.] This sentence was well outside of the
       Guideline range and there was insufficient reasoning on the record
       as to why this was an adequate sentence.

Lewis’s Br. at 8 (unnecessary capitalization omitted).3

                          I. Sufficiency of the Evidence

       In his first issue, Lewis argues that there was insufficient evidence to

convict him of Witness Intimidation under 18 Pa.C.S.A. § 4952. The trial court

found the issue waived, as Lewis’s Pa.R.A.P. 1925(b) statement did not specify

which elements of Witness Intimidation were unproven at trial. See Trial Court

Opinion, filed Sept. 11, 2017, at 3. Nevertheless, the court concluded that the

claim lacked merit, because Lewis “attempted to dissuade the [victim] from

testifying in court[.] This threat was made in the presence of law enforcement,

who corroborated the [victim]’s account.” Id. at 4.

       Because, in the instant case, the facts comprising the elements of the

crime are relatively straightforward, and the trial court addressed them, we

shall review the sufficiency of the evidence, which is a question of law. See

Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007); Commonwealth v.

Williams, 871 A.2d 254, 259 (Pa.Super. 2005). Our standard of review

“requires that we evaluate the record ‘in the light most favorable to the verdict
____________________________________________


3 As the transcripts of trial and sentencing were not originally included with
the certified record, we issued a per curiam order on July 27, 2018, directing
the trial court to supplement the certified record. We received the necessary
transcripts on August 17, 2018.

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winner giving the prosecution the benefit of all reasonable inferences to be

drawn from the evidence.’” Commonwealth v. Rahman, 75 A.3d 497, 500

(Pa.Super. 2013) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751

(Pa. 2000)). “Evidence will be deemed sufficient to support the verdict when

it establishes each material element of the crime charged and the commission

thereof by the accused, beyond a reasonable doubt.”                Id. (quoting

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005)). The

Commonwealth may prove guilt through wholly circumstantial evidence, and

the fact-finder may accept all, part, or none of the evidence presented at trial.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015); Williams, 871

A.2d at 259.

      In order for a person to be convicted of Intimidation of a Witness under

the relevant section of the statute, the Commonwealth must introduce

evidence to establish beyond a reasonable doubt that the person,

      with the intent to or with the knowledge that his conduct will
      obstruct, impede, impair, prevent or interfere with the
      administration of criminal justice, . . . intimidate[d] or attempt[ed]
      to intimidate any witness or victim to . . . [r]efrain from informing
      or reporting to any law enforcement officer, prosecuting official or
      judge concerning any information, document or thing relating to
      the commission of a crime.

18 Pa.C.S.A. § 4952(a)(1).

      Lewis first argues that the victim’s injuries did not match her testimony

describing the attack because she fabricated the assault (hence, the jury

acquitted Lewis of the assault charge). Lewis claims that his statements were



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therefore not actual threats, but rather expressions of his “indignation that

[the victim] would make false statements against him,” and that he made

them while he was “upset that he was being falsely arrested.” Lewis’s Br. at

13.

      We find no merit to this claim. The Commonwealth need only prove that

the defendant had knowledge, and not specific intent, that his conduct was

likely to obstruct, impede, impair, prevent, or interfere with the administration

of criminal justice, and the Commonwealth may do so using circumstantial

evidence. See 18 Pa.C.S.A. § 4952; Commonwealth v. Beasley, 138 A.3d

39, 48 (Pa.Super. 2016) (citing Commonwealth v. Collington, 615 A.2d

769, 770 (Pa.Super. 1992)). Viewing the evidence in the light most favorable

to the Commonwealth, Lewis threatened the victim with violence if she

testified against him, and objectively knew that his words were likely to

interfere with her decision to speak with police or testify against Lewis, even

if Lewis did not subjectively intend for the victim to feel threatened.

      Second, Lewis argues that there was no testimony that Lewis’s

statements actually intimidated the victim, and the victim’s appearance in

court proves that she was not intimidated. Proof of actual intimidation is not

required, as the definition of the crime of intimidation of a witness includes an

attempt to intimidate. Beasley, 138 A.3d 39, 48 (citing Collington, 615 A.2d

at 770). We therefore hold that Lewis’s first issue lacks merit.




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                       II. Prosecutorial Misconduct

      In Lewis’s second, third, and fourth issues, he claims that the prosecutor

made remarks in his closing argument that constituted prosecutorial

misconduct. The trial court found these issues waived, because although Lewis

made timely objections to the alleged misconduct, he did not raise the issues

in his post-sentence motion. See Trial Ct. Op. at 5. Despite finding the issues

waived, the court addressed the merits, and found that “[t]he prosecutor’s

comments . . . were made in response to defense counsel’s strategy as well

as [Lewis’s] own behavior and testimony at trial.” Id. at 6. The court explained

that “[t]he prosecutor merely remarked on the veracity of [Lewis]’s narrative

and argued to the jury that the timeline and theory presented by the defense

was illogical and inconsistent.” Id. The court also found that the remarks were

unlikely to prejudice Lewis, as the evidence of the crime was overwhelming,

and that the jury was not prejudiced by the remarks, as evidenced by Lewis’s

acquittal on the other charges. Id.

      Although Lewis was not obligated to preserve these issues through the

filing of a post-sentence motion, see Pa.R.Crim.P. 720(B)(1)(c) (“Issues

raised before or during trial shall be deemed preserved for appeal whether or

not the defendant elects to file a post-sentence motion on those issues”), the

trial court is correct that Lewis’s contemporaneous objections to the

prosecutor’s statements were not sufficient to preserve his claims. Lewis was

required to request specific relief in the form of a mistrial or a curative jury


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instruction. See Commonwealth v. Brown, 134 A.3d 1097, 1107,

(Pa.Super. 2016); Commonwealth v. Sandusky, 77 A.3d 663, 670

(Pa.Super. 2013). As he did not do so, his issues are waived.

      However, even if Lewis had preserved his claims, he would be due no

relief. “Argument must be based upon matters in evidence, or upon the

legitimate inferences that can be drawn from that evidence,” Commonwealth

v. Johnson, 139 A.3d 1257, 1275 (Pa. 2016) (citation omitted), and “it is

improper for a prosecutor to express a personal opinion as to a defendant's

guilt or the credibility of a defendant or other witnesses.” Commonwealth v.

Weiss, 776 A.2d 958, 969 (Pa. 2001) (citation omitted). However, “[a]

prosecutor enjoys reasonable latitude during closing arguments, and may

advocate with force, vigor, and oratorical flair,” Johnson, 139 A.3d at 1275

(citation omitted), and “[i]f defense counsel has attacked the credibility of

witnesses in closing, the prosecutor may present argument addressing the

witnesses’ credibility.” Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa.

2005). Ultimately, a prosecutor’s comments “are not a basis for the granting

of a new trial unless the unavoidable effect of such comments would be to

prejudice the jury, forming in their minds fixed bias and hostility towards the

accused which would prevent them from properly weighing the evidence and

rendering a true verdict.” Weiss, 776 A.2d at 968 (quoting Commonwealth

v. Jones, 683 A.2d 1181, 1199 (Pa. 1996) (emphasis in Weiss).




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      Here, Lewis complains that the prosecutor stated that Lewis “would be

up for an Academy Award” for crying during another witness’s testimony, and

that defense counsel’s analysis of some of the trial testimony was “really

stretching it.” Lewis’s Br. at 15. Lewis also complains that the prosecutor told

the jury that Lewis was “perpetrating a fraud” by forging and sending himself

a letter which Lewis’s attorney had suggested had been sent from the victim.

Id. Lewis argues that each of these three statements by the prosecutor was

either not supported by the record or consists of the prosecutor’s personal

opinion about Lewis’s credibility.

      Lewis is not entitled to relief because he has not established that these

statements, or any one of them, would have unavoidably prejudiced the jury

against rendering a true verdict. See Weiss, 776 A.2d at 523-24 and 523 n.8

(holding that prosecutor’s characterization of defendant’s testimony as “fairy

tales” did not unavoidably prejudice jury). Moreover, the prosecutor was

responding to Lewis’s closing argument. In his closing statement, Lewis’s

attorney addressed Lewis’s credibility, errors in the police report, and a letter

that defense counsel contended the victim may have sent to Lewis. See N.T.

(Trial) at 35, 37-38. It was therefore proper for the prosecutor to address the

believability of this evidence. See Chmiel, 889 A.2d at 544. Additionally, as

the trial court noted, the evidence against Lewis on the charge of Witness

Intimidation, which consisted of the testimony of the victim and two officers,

was overwhelming. Therefore, any prejudice from the prosecutor’s remarks


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was harmless. See id. at 529 (stating that harmless error exists where

prejudicial effect was insignificant in comparison with overwhelming evidence

of guilt). Finally, the trial court instructed the jury that closing arguments were

not evidence, see N.T. (Trial) at 24, and we presume that the jury followed

this instruction. See Weiss, 776 A.2d at 970. We therefore hold that Lewis is

due no relief on his claims of prosecutorial misconduct.

                           III. Length of Sentence

      Lewis argues that his sentence of a minimum of eight years’

incarceration was excessive as it was not only above the Sentencing

Guidelines’ standard range (a minimum sentence of 42 to 60 months in prison)

but also the aggravated range (a minimum sentence of 72 months in prison).

Lewis further argues that the court imposed the lengthy sentence because it

took into account the other charges for which the jury found him not guilty,

and that the court failed to explain how the sentence “was the least stringent

one adequate to protect the community and to serve the rehabilitative needs

of [Lewis].” Lewis’s Br. at 18. Lewis complains that when the court stated it

would not tolerate witness intimidation “not just in this case, but throughout

our society in terms of getting these very serious crimes to trial,” it indicated

that it was sentencing him “based upon sending a message to others based

upon past experiences in getting cases to trial.” Id. at 20.

      Lewis thus argues that the court abused its discretion because it did not

engage in individualized sentencing or consider the factors listed in 42


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Pa.C.S.A. § 9721(b), including his “age, life circumstances, or amenability to

treatment or rehabilitation, or even his future dangerousness.” Lewis’s Br. at

19. Lewis claims he has a minimal criminal record, and “lead[s] an otherwise

law-abiding life.” Id. Lewis also argues that although he requested to proceed

without    a   pre-sentence      investigation     report,   the   court   should   have

nonetheless conducted a detailed questioning of Lewis in order to tailor its

sentence.

       As Lewis challenges the discretionary aspects of his sentence, we must

first determine whether: (1) the appeal is timely, (2) the instant issue was

properly preserved, (3) the appellant’s brief contains a statement pursuant to

Pa.R.A.P. 2119(f),4 and (4) there is a substantial question that the sentence

is not    appropriate     under    the   Sentencing Code.          Commonwealth v.

Machicote, 172 A.3d 595, 602 (Pa.Super. 2017).

       We find that Lewis’s appeal was timely and his brief includes a Pa.R.A.P.

2119(f) statement. However, the only issues Lewis raised in his post-sentence

motion and related hearing were the length of his sentence and the court’s

failure to order a pre-sentence investigation. Lewis’s other issues are therefore

waived. See Pa.R.A.P. 302 (issues cannot be raised for the first time on


____________________________________________


4 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. The statement shall immediately
precede the argument on the merits with respect to the discretionary aspects
of the sentence.” Pa.R.A.P. 2119(f).

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appeal); Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003)

(issues challenging discretionary aspects of sentencing must be raised in post-

sentence motion or raised during sentencing proceedings).

      We therefore address whether Lewis’s remaining issues have presented

a substantial question that his sentence is inappropriate under the Sentencing

Code. “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) (citation

omitted). A claim of excessiveness raises a substantial question, as does the

allegation that the sentencing court imposed a sentence without a pre-

sentence investigation report. See Commonwealth v. Kelly, 33 A.3d 638,

640 (Pa.Super. 2011); Commonwealth v. Flowers, 950 A.2d 330, 332

(Pa.Super. 2008) (citing Commonwealth v. Goggins, 748 A.2d 721, 728

(Pa.Super.2000)).   We    therefore   review   the   merits   of   these   claims,

acknowledging that the trial court exercises broad discretion in sentencing

matters. Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      Having reviewed the reasons given by the trial court for its sentence,

we find that Lewis has presented no colorable argument as to why his

sentence was too severe. Nor does Lewis present reasons for a shorter

sentence that were not already specifically considered by the trial court.


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      Moreover, a sentencing court is not required to order a pre-sentence

investigation report, but rather needs only state its reasons on the record for

not doing ordering one. See Pa.R.Crim.P. 702(A)(2). Here, Lewis stated on

the record that he wanted the court to sentence him on the date of his

conviction, and his counsel stated that Lewis was declining the court’s offer to

delay sentencing and order a pre-sentence investigation. We therefore

conclude that the court’s reasoning for deciding to forego a pre-sentence

investigation was apparent on the record.

      In addition, “[t]he essential inquiry” is not whether the court obtained a

pre-sentence investigation report, but “whether the sentencing court was

apprised of comprehensive information to make the punishment fit not only

the crime but also the person who committed it.” Commonwealth v.

Finnecy, 135 A.3d 1028, 1032 (Pa.Super. 2016) (citation omitted). Lewis did

not raise in his post-sentence motion any material background information or

relevant factors that the court failed investigate and consider at the time of

sentencing that would have been included in a pre-sentence investigation

report. Instead, at the hearing, Lewis’s attorney baldly stated that the court

should reconsider sentence because there had been no pre-sentence

investigation report and this “didn’t make [counsel] as effective as [he] could

have been even though it was [Lewis’s] wish to go forward.” N.T. (Motion) at

3. Nor has Lewis on appeal set forth any information that would have been




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included in a pre-sentence investigation report that the court did not consider

that may have altered its sentence.

      Given the argument presented at sentencing and the reasoning stated

by the court on the record, we conclude that the trial court did not abuse its

discretion in formulating Lewis’s sentence, and hold that Lewis’s final issue

merits no relief. As Lewis has presented no meritorious issues, we affirm his

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/18




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