J-S53012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KABRIL I. WILLIAMS-KEYES

                         Appellant                    No. 1431 MDA 2015


            Appeal from the Judgment of Sentence July 1, 2015
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0000877-2015
                          CP-40-CR-0004138-2014


BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED OCTOBER 27, 2016

      Kabril I. Williams-Keyes appeals from the aggregate judgment of

sentence of ten to twenty years of incarceration imposed following his entry

of guilty pleas in two criminal cases. We affirm.

      Both cases involve Appellant’s physical abuse of Ernestine Pearson.

The following facts are taken from the affidavits of probable cause. The first

incident occurred on the evening of August 5, 2014.          While visiting Ms.

Pearson’s apartment, Appellant repeatedly punched and kicked her.          She

attempted to call 911, but Appellant took her phone.     Appellant doused her

with grease and alcohol, and threatened to light her on fire with an aerosol

can and lighter. The abuse continued throughout the evening until the next

day, when Ms. Pearson was able to escape.            A passerby observed her

* Former Justice specially assigned to the Superior Court.
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fleeing, with Appellant chasing.     The witness saw Appellant dragging Ms.

Pearson by her hair back to the apartment.        The bystander immediately

called police, who went to the apartment complex. Appellant, however, had

fled. Emergency personnel transported Ms. Pearson to the hospital, where

Officer Matthew Bonawits of the Edwardsville Police Department interviewed

her. The officer noted Ms. Pearson had suffered multiple injuries and one

eye was swollen shut.

         For the aforementioned crimes, Appellant was charged via written

complaint on August 6, 2014.         On November 19, 2014, one count of

aggravated assault, graded as a felony of the second degree, was held for

court, and docketed at criminal number 4138 of 2014. Appellant posted bail

the same day, with the condition that he refrain from entering Ms. Pearson’s

residence.

         Appellant did not abide by this condition. On the evening of December

31, 2014, Ms. Pearson picked up Appellant to go shopping and pay some

bills.   The two returned to her residence.     Over her objection, Appellant

stayed the evening. In the morning, he confronted Ms. Pearson regarding

text messages he saw on her phone. He punched her in the head and bit

her finger.    Appellant then retrieved a knife, and threatened Ms. Pearson.

Appellant’s mother was present, as well as Ms. Pearson’s two small children,

one of whom was fathered by Appellant. Appellant told his mother to leave,

stating, “You don’t want to be a witness to this.” Appellant’s mother called

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the police and went outside to flag down the responding officer, Edwardsville

Police Department Officer Michael Lehman.           The officer proceeded to the

residence; however, Appellant had fled with Ms. Pearson and the two

children in a vehicle. Appellant led police on a high-speed car chase. The

pursuit ended when Appellant drove his vehicle into a guardrail, telling Ms.

Pearson that he would not go to jail and she should kiss her children

goodbye. Twenty separate criminal counts were filed against Appellant for

this incident, all of which were held for court and subsequently docketed at

criminal number 877 of 2015.

     On May 19, 2015, Appellant entered a guilty plea at both cases. At

criminal case 4138 of 2014, Appellant pled guilty to the sole count of

aggravated assault.    At action number 877 of 2015, the Commonwealth

withdrew seventeen of the counts.        Appellant pled guilty to one count of

aggravated assault for the crimes committed against Ms. Pearson and two

counts of attempted aggravated assault against a person less than thirteen

years old, for the crimes against the two children. Sentencing was deferred

to enable preparation of a pre-sentence report.

     On July 1, 2015, the parties appeared for sentencing.               Appellant

received a sentence of thirty-six to seventy-two months at the sole count of

aggravated assault at action number 2014-4138.              At the other action,

Appellant   received   sentences   of   forty-two    to   eighty-four   months   of

imprisonment at each count of attempted aggravated assault against a child,

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and a sentence of thirty-six to seventy-two months of incarceration at the

remaining aggravated assault count.               All three sentences were imposed

consecutively to each other and concurrent to the 2014 case.                      Thus,

Appellant    received     an   aggregate        sentence   of   120   to   240   months

incarceration.

       Appellant thereafter filed, on July 9, 2015, a post-sentence motion

requesting a sentence modification, in which he complained that the

imposed sentence was above the applicable mitigated guideline ranges, and

that the court failed to consider several mitigating factors.                Motion for
                                        1
Reconsideration, 7/9/15, at 1-2.               The motion was denied July 22, 2015.

Appellant lodged a timely notice of appeal on August 19, 2015.

       Appellant complied with the trial court’s order to file a Pa.R.A.P.

1925(b) statement, and the court issued its responsive opinion on December

22, 2015.     The matter is now ready for our review.            Appellant raises four

claims.

       1.    Whether the [s]entencing [c]ourt imposed an improper
       sentence under the law[?]



____________________________________________


1
   This motion was filed by private counsel, Stephen Molitoris, Esquire, who
entered his appearance on July 21, 2015. At the time of the post-sentence
motion, Appellant was represented by the office of the public defender, who
also filed a post-sentence on Appellant’s behalf.      The public defender
subsequently withdrew.



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      2.    Whether the [s]entencing [c]ourt erred in            denying
      Appellant’s         post-sentence           Motion              for
      Reconsideration/Modification of Sentence[?]

      3.    Whether there exists a substantial question that the
      sentence imposed is inappropriate in that imposition of the
      sentence occurred with an application of the sentencing
      guidelines that resulted in a clearly unreasonable aggregate
      sentence[?]

      4.   Whether there exists a substantial question that the
      sentence imposed is inappropriate in that imposition of the
      sentence resulted in a manifestly excessive and unreasonable
      aggregate sentence[?]

Appellant’s brief at 5. All four of these challenges implicate the discretionary

aspects of the sentence.

      Preliminarily, we note that “there is no absolute right to appeal when

challenging the discretionary aspect of a sentence.”      Commonwealth v.

Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008).            An appellant must first

satisfy a four-part test to invoke this Court’s jurisdiction. We examine

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation

omitted). As we have set forth, the first two requirements have been met.

      We next assess whether Appellant’s failure to include a separate

concise statement as required by Pa.R.A.P. 2119(f) is fatal. The Rule states:



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     (f) Discretionary aspects of sentence. 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).      Since the Commonwealth has not objected to the

statement’s absence, we decline to find the claim waived on that basis.

Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.Super. 2009).

     We now address whether Appellant has presented a substantial

question. Since Appellant has not included a Rule 2119(f) statement, and

mindful that we may not review the merits of the question at this juncture,

we have examined other portions of the brief. Commonwealth v. Dodge,

77 A.3d 1263, 1271 (Pa.Super. 2013) (court may look to statement of

questions presented).

     We determine the existence of a substantial question on a case-by-

case basis. 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.
     Additionally, we cannot look beyond the statement of questions
     presented and the prefatory 2119(f) statement to determine
     whether a substantial question exists.

Commonwealth v. Diehl, 140 A.3d 34, 44–45 (Pa.Super. 2016) (internal

citations and quotation marks omitted).




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      Appellant’s statement of questions presents a boilerplate allegation

that the sentence violates two precepts. He argues, “Instantly, by failing to

properly consider and weigh the relevant sentencing factors under the

Sentencing Code and guidelines, the sentence imposed was a result of an

inconsistent application of the Sentencing Code and ran afoul of the

fundamental norms underlying the substantial question.” Appellant’s brief at

10. This allegation does not raise a substantial question. Commonwealth

v. Lewis, 911 A.2d 558, 567 (Pa.Super. 2006) (“A claim that a sentencing

court failed to consider certain mitigating factors does not raise a substantial

question that the sentence is inappropriate.”); Commonwealth v. Haynes,

125 A.3d 800, 807 (Pa.Super. 2015) (assertion that the trial court failed to

consider his mental health issues and rehabilitative needs does not raise

substantial question).

      Secondly, Appellant contends that the sentence, while within the

guidelines, is excessive and unreasonable because the sentences in the 2015

matter were imposed consecutively.       Where, as here, the sentences are

within the applicable guideline ranges, the sentencing judge’s decision to

impose consecutive sentences standing alone does not raise a substantial

question. As we stated in Dodge, supra:



      To make it clear, a defendant may raise a substantial question
      where he receives consecutive sentences within the guideline
      ranges if the case involves circumstances where the application

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      of the guidelines would be clearly unreasonable, resulting in an
      excessive sentence; however, a bald claim of excessiveness due
      to the consecutive nature of a sentence will not raise a
      substantial question. See Commonwealth v. Moury, 992 A.2d
      162, 171–172 (Pa.Super. 2010) (“The imposition of consecutive,
      rather than concurrent, sentences may raise a substantial
      question in only the most extreme circumstances, such as where
      the aggregate sentence is unduly harsh, considering the nature
      of the crimes and the length of imprisonment.”)[.]

Id. 1270 (emphasis in original).

      These cases do not raise even a scintilla of doubt that applying the

guidelines to these crimes was reasonable. Over the course of an evening,

Appellant viciously beat Ms. Pearson, a woman with whom he had an infant

child, and prevented her from calling 911. When she was able to escape the

next day, an eyewitness observed Appellant forcibly dragging her back to

the apartment. Despite being ordered to have no contact with the victim, he

returned to her residence, stayed overnight, threatened her with a knife, and

led police on a high-speed chase with Ms. Pearson and her two children in

the vehicle.

      Appellant argues that this subsequent contact is a point in his favor.

      [T]he sentence of [Appellant] reflected harsh punishment for
      having contact with the victim (a violation of his bail conditions
      at the time), without consideration for his love for his family or
      the initiation of the contact by the victim (contact, which, as set
      forth by [Appellant], often occurred at the request of the victim,
      who often asked [Appellant] to stay with her and her children or
      to babysit the children while she worked.

Appellant’s brief at 7. Appellant had the duty to abide by the conditions, not

his victim. Considering the nature and circumstances of these crimes and


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the length of incarceration imposed, we do not hesitate in holding Appellant

has failed to raise a substantial question that the application of the

guidelines and the imposition of consecutive sentences in light of this

conduct was unreasonable.

      Next, we review Appellant’s claim that a substantial question is

presented because the sentencing court did not consider a litany of factors

justifying a lesser sentence. See Appellant’s brief at 11-12 (Appellant pled

guilty and has demonstrated remorse, he suffers from addiction and mental

health issues, has a family, has a consistent employment history, and his

actions were uncharacteristic and fueled by substance abuse and anger

management issues). A claim that the trial court failed to consider relevant

sentencing criteria does raise a substantial question. Dodge, supra at 1273

(“Appellant’s claim that the sentencing court disregarded rehabilitation and

the nature and circumstances of the offense in handing down its sentence

presents a substantial question for our review.”). Additionally, “This Court

has also held that ‘an excessive sentence claim—in conjunction with an

assertion that the court failed to consider mitigating factors—raises a

substantial question.’”   Commonwealth v. Caldwell, 117 A.3d 763, 770

(Pa.Super. 2015) (en banc) (quoting Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa.Super. 2014)).

      Having determined Appellant raised a substantial question, we review

the merits of his sentencing challenges.   This Court’s standard of review

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limits our ability to vacate and remand in cases where the court sentenced

within the guidelines. We may reverse only if applying the guidelines would

be clearly unreasonable under the circumstances. 42 Pa.C.S. § 9781(c)(2);

See Commonwealth v. Macias, 968 A.2d 773, 777 (Pa.Super. 2009)

(defining unreasonable as decision that is either irrational or not guided by

sound judgment).    The sentences were within the guidelines at all counts

and the choice to apply them was rational.         Section 9781(d) of the

Sentencing Code provides that when we review the record, we must 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.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d). Appellant’s claim that the sentencing court failed to

consider a host of factors is belied by the record. “Our Supreme Court has

ruled that where pre-sentence reports exist, the presumption will stand that

the sentencing judge was both aware of and appropriately weighed all

relevant information contained therein.”    Commonwealth v. Griffin, 804

A.2d 1, 8 (Pa.Super. 2002) (citing Commonwealth v. Devers, 546 A.2d

12, 18 (Pa. 1988)). The judge specifically stated that he had reviewed and

considered the report. N.T., 7/1/15, at 27. We have already discussed the

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nature and circumstances of the offense, and the court placed findings on

the record.   Appellant’s real issue is not that the court failed to consider

these issues; rather, he simply disagrees with the judge’s weighing of these

factors. Hence, we find no abuse of discretion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2016




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