J-S31020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE MIGUEL MORALES III                    :
                                               :
                       Appellant               :   No. 1852 MDA 2019

          Appeal from the Judgment of Sentence Entered May 30, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                            CP-67-CR-0007877-2017


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 19, 2020

       Appellant, Jose Miguel Morales, III, appeals from the May 30, 2019

Judgment of Sentence entered in the York County Court of Common Pleas

following his jury conviction of Drug Delivery Resulting in Death (“DDRD”),

Criminal Use of a Communication Facility (“CUCF”), Involuntary Manslaughter,

and Delivery of Fentanyl.1 Appellant challenges the sufficiency of the evidence

underlying his convictions and the discretionary aspects of his DDRD sentence.

After careful review, we affirm.

       The relevant facts and procedural history are as follows.           The

Commonwealth charged Appellant with the above crimes following the March

18, 2017 death of Derek Mount (the “Victim”) from a fentanyl overdose. The


____________________________________________


1 18 Pa.C.S. §§ 2506(a), 7512(a), 2504(a), and 35 P.S. § 780-113(a)(30),
respectively.
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Commonwealth alleged that Appellant supplied the Victim, his friend, with the

fatal fentanyl.

       Appellant proceeded to a jury trial at which the Commonwealth

presented the testimony of, inter alia, the Victim’s mother Denise Pazdan, the

Victim’s brother Weston Pazdan, the Victim’s friend Christopher Hartlove,2 the

Victim’s girlfriend Stephanie Garrett, York County Detective Scott James,

Police Detective Russell Schauer, and Springettsbury Township Police

Detective Chad Moyer.3 Appellant did not testify on his own behalf.

       Ms. Pazdan testified that the Victim had had a drug addiction since 2014.

N.T., 3/19/19, at 144. She testified that, several times before and during the

week prior to the Victim’s death, Appellant, whom she knew as “Julio,” visited

their home, including two days prior to the Victim’s death when the Victim

met Julio outside the family’s home to loan him a video game. Id. at 147-48,

152. She stated that each time the Victim met with Appellant his behavior

and his mood changed, he became argumentative, he would make excuses



____________________________________________


2 Owing to Mr. Hartlove’s anticipated unavailability, he testified by deposition
on February 27, 2019 and the Commonwealth read Mr. Hartlove’s deposition
testimony into the trial record. See N.T., 3/19/19, at 196-217.

3 The Commonwealth also introduced the testimony of Nadine Koenig, the
forensic toxicologist who wrote the toxicology report prepared as part of the
Victim’s autopsy, and Barbara Bollinger, the forensic pathologist who
performed the Victim’s autopsy. N.T., 3/20/19, at 307-343. These experts
testified that the Victim had fentanyl in his bloodstream at the time of his
death and that his use of fentanyl caused his death. Id. at 329.



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not to spend time with the family, and he appeared intoxicated. Id. at 152-

53.

       Mr. Hartlove testified that at approximately 9:00 PM on March 17, 2017,

he drove the Victim to pick up some video games from “a friend.”          N.T.,

2/27/19, at 8-9. He stated that, on the way, they stopped at a bank so the

Victim could withdraw money. Id. at 15. He then drove the Victim to an

alleyway and parked, and the victim left the car and walked down the alleyway

alone.4   Id. at 10, 15.      Approximately 15 to 20 minutes later, the Victim

returned to the car. Id. Upon his return, the Victim “nodded off a couple of

times” and was unable to hold a conversation with Mr. Hartlove. Id. at 11.

Mr. Hartlove testified that the Victim had not been acting like this before he

exited the vehicle. Id. at 11, 14. He also testified that he had seen the Victim

like this on prior occasions and that, “[t]here wasn’t a doubt in my mind that

I knew [the Victim] had probably done something that he shouldn’t have and

he was under the influence.” Id. at 14. He testified that he drove the Victim

home, and stayed to play video games, leaving at around 11:30 PM. Id. at

15-16.

       Weston Pazdan, the Victim’s brother, testified that he lived with the

Victim at the time of the Victim’s death. N.T., 3/19/19, at 170. He testified

that he knew the Victim’s associate “Julio,” and identified Appellant as the



____________________________________________


4 Detectives identified this alleyway as three doors down from Appellant’s
residence. N.T., 3/20/19, at 409.

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person he knew as “Julio.” Id. at 170, 176-77. He testified that he knew that

the Victim and Julio would often swap video games. Id. at 174.

      Stephanie Garrett, the Victim’s girlfriend, testified that she was aware

that, in 2016, the Victim bought drugs from “one main person in particular . .

. ‘Gino’” Id. at 223, 231. She testified that the Victim had cooperated with

the police in their arrest of “Gino” and could no longer obtain drugs from him.

Id. at 223-25. She stated that the Victim also obtained drugs from “Julio,”

and that she was not aware of the Victim buying drugs from any other dealers.

Id. at 224-25. She further testified that, after the Victim died, she called

Appellant to inform him and, at first, he cried but then he became “worried.”

Id. at 225-26. She testified that she spoke with the police about the phone

call she had made to Appellant after the Victim’s death and provided them

with “Julio’s” phone number. Id. at 227.

      York County Detective Scott James testified as an expert in the area of

forensic cell phone analysis. Id. at 242. He stated that the Springettsbury

Township Police Department requested him to perform analyses of two cell

phones—an LG and a Kyocera—recovered from the Victim during the

investigation. Id. at 242-43. Detective James testified that he examined the

Kyocera phone manually and found on it a text message conversation that

“appeared to be drug related.” Id. at 245-46, 253. He also testified that he

found incoming and outgoing messages from a phone number connected to

Appellant. Id. at 245, 254-56.




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       Detective James further testified that he performed a data extraction of

the LG phone. Id. at 247. He stated that the LG phone, like the Kyocera

phone, also had incoming and outgoing text messages and phone calls to a

phone number associated with Appellant. Id. at 258, 262. Detective James

specifically testified that the Victim and Appellant exchanged a series of phone

calls and text messages on both March 16, 2017, and March 17, 2017, in the

hours immediately preceding the Victim’s death. Id. at 263-268.

       York County Drug Task Force member Detective Russell Schauer

testified that he assisted Detective Chad Moyer in investigating the Victim’s

fatal drug overdose.       Id. at 346.     He testified that Appellant went by the

nicknames “King Chance” and “Julio.”             Id. at 346-47.   Detective Schauer

testified that, when he arrested Appellant, Appellant made a verbal statement

to him, which Detective Schauer memorialized in writing and Appellant

signed.5 Id. at 350. In his statement, which the trial court admitted into

evidence, Appellant indicated that he and the Victim had used drugs together,

including heroin and fentanyl. Id. at 351-52. Appellant also stated that “[t]he

thought of me being the person responsible for his death crossed my mind a

couple times,” and that he “changed [his] number so [he] couldn’t be

implicated in his death.” Id. Appellant also indicated in his statement that,

____________________________________________


5 Appellant indicated that he could not read or write English, but could
understand it. Detective Schauer testified that he had had numerous prior
contacts with Appellant and that Appellant did not appear to have any difficulty
speaking English. N.T. at 353-54.


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at the time of the Victim’s death, he had been living at 601 West King Street

in York and that the Victim would come to his house to play video games and

use heroin and fentanyl. Id. at 352. He admitted that it is possible that he

saw the Victim on March 17, 2017, but that, if he did, he was under the

influence of drugs and did not remember. Id.

      Detective Schauer testified that, in 2016, the Victim had assisted him

as a confidential informant, which resulted in the arrest of the Victim’s drug

dealer, Jaime Ramos. Id. at 354. He confirmed that, after police arrested

Ramos, the Victim was unable to purchase drugs from him. Id. at 356.

      Detective Moyer testified that when he arrived at the scene of the

Victim’s death on March 18, 2017, he recovered a Kyocera phone from the

Victim’s nightstand and an LG phone from the Victim’s mother. Id. at 400-

01, 403.    He explained that he sent the phones to Detective James for

analysis.   Id. at 405.   He testified that he spoke with Mr. Hartlove in an

attempt to ascertain where Mr. Hartlove had brought the Victim on the evening

before he died. Id. 406. Mr. Hartlove identified an alleyway three doors away

from Appellant’s residence. Id. at 409, 417-18.

      Detective Moyer further testified that Appellant confirmed that he was

the owner of the phone number that had participated in numerous phone calls

and text message conversations with the Victim in the days leading up to the

Victim’s death. Id. at 417. Appellant, however, denied making the calls or

having conversations with the Victim. Id. at 418. Detective Moyer stated




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that he manually examined the Kyocera phone and located drug-related

messages. Id. at 419.

       On March 21, 2019, the jury convicted Appellant of the above charges.

The trial court deferred sentencing pending preparation of a Pre-Sentence

Investigation (“PSI”) report.        On May 30, 2019, the trial court sentenced

Appellant to a term of 20 to 40 years’ incarceration for his DDRD conviction

and a concurrent term of 3½ to 7 years’ incarceration for his CUCF conviction.6

       On June 6, 2019, Appellant filed a timely Post-Sentence Motion in which

he challenged, inter alia, the discretionary aspects of his sentence.      See

Motion, 6/6/19 at ¶ 13 (“The statutory maximum sentence of 20 to 40 years

was unreasonable and without proper express or implicit consideration. The

noted factors were already considered in the elements of the crimes, including

[the Victim’s] death, the delivery of drugs, and prior convictions.”).      On

October 29, 2019, the trial court denied Appellant’s Post-Sentence Motion.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following two issues on appeal:

       1.    Was the evidence insufficient to convict [Appellant] of any
       of the charged offenses where they all hinged on delivery of
       fentanyl and the Commonwealth failed to prove beyond a
       reasonable doubt that it was [Appellant] who made the delivery?

       2.   Did the court improperly give [Appellant] the maximum
       sentence for DDRD in large part because of the death of the
____________________________________________


6Appellant’s Involuntary Manslaughter and Delivery of Fentanyl convictions
merged for purposes of sentencing.

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J-S31020-20


      [V]ictim, an element of the offense, and [Appellant’s] prior
      convictions, which are already factored into the sentencing
      guidelines?

Appellant’s Brief at 4.

      In   his   first   issue,   Appellant   challenges   the   sufficiency   of   the

Commonwealth’s evidence in support of “any of [his] convictions.” Id. at 24.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citation omitted).       “Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence.” Id. (citation omitted). “In conducting this review, the

appellate court may not weigh the evidence and substitute its judgment for

the fact-finder.” Id. (citation omitted).

      Appellant     challenges     the   evidence    supporting    his   convictions.

Appellant’s Brief at 24-30. He argues that the Commonwealth failed to prove

that he was the person who delivered the fentanyl because it offered only

“suspicion and conjecture,” and not actual direct or circumstantial evidence,




                                         -8-
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to prove delivery of fentanyl, which he alleges is the “essence of each charge.”

Id. at 24-25, 29.

      Delivery of a controlled substance is an element of the offenses of DDRD

and Delivery of Fentanyl. With respect to DDRD, Section 2506 of the Crimes

Code states, in relevant part, “[a] person commits a felony of the first degree

if the person intentionally . . . delivers, . . . sells or distributes any controlled

substance . . . , and another person dies as a result of using the substance.”

18 Pa.C.S. § 2506(a).

      The Controlled Substance, Drug, Device and Cosmetic Act prohibits the

delivery of a controlled substance without proper authorization.          35 P.S. §

780-113(a)(30).      “Delivery” is defined as “the actual, constructive, or

attempted transfer from one person to another of a controlled substance[.]”

35 P.S. § 780-102.       “A defendant actually transfers drugs whenever he

physically conveys drugs to another person.” Commonwealth v. Murphy,

844 A.2d 1228, 1234 (Pa. 2004).

      A defendant is guilty of CUCF if he intentionally, knowingly, or recklessly

used one or more cell phones to facilitate the commission of a felony. 18

Pa.C.S. § 7512(a). Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super.

2004). Instantly, the Commonwealth alleged that Appellant used a cell phone

to facilitate his Delivery of Fentanyl.

      The Crimes Code defines Involuntary Manslaughter as, when as a direct

result of the commission of “an unlawful act in a reckless or grossly negligent

manner” or the commission of “a lawful act in a reckless or grossly negligent

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manner,” the defendant causes the death of another person. 18 Pa.C.S. §

2504(a).

      The Commonwealth’s evidence, as set forth above and viewed in the

light most favorable to the Commonwealth as verdict-winner indicates, inter

alia, that: (1) the Victim had assisted the police in arresting the Victim’s

former drug dealer, “Gino,” and could not, therefore, purchase drugs from him

anymore; (2) Appellant had a history of, and had admitted to, selling drugs

to and exchanging drugs with the Victim, including fentanyl; (3) since he could

no longer purchase drugs from Gino, Appellant was the only drug dealer who

provided drugs to the Victim; (4) Appellant and the Victim also had a history

of sharing video games; (5) Appellant went by the nickname “Julio;” (6) in

the hours before his death, the Victim told his mother that he was going to

meet Julio and that he was lending Julio a video game; (7) in the hours before

his death, the victim went by car with Mr. Hartlove to a bank, withdrew money,

and walked down an alley three houses away from Appellant’s residence; (8)

the Victim returned to the car, and he appeared under the influence; (9) there

were several calls and text messages between Appellant’s phone and the

Victim’s phone in the hours before the Victim died; (10) Appellant changed his

phone number after the Victim’s death so that he would not be implicated in

it; and (11) the thought that Appellant had been responsible for the Victim’s

death had occurred to Appellant.

      In support of his sufficiency challenge, Appellant argues that none of the

Commonwealth’s witnesses testified that they saw Appellant with the Victim

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on the night the Victim died. Appellant’s Brief at 25. He also asserts that the

Commonwealth failed to prove that the Victim received the fentanyl from

Appellant or that the Victim received the fentanyl on the night of his death

and not on some earlier occasion. Id. Appellant argues that evidence that

Appellant and the Victim, who were friends, spoke on the telephone on the

night of the Victim’s death, without information pertaining to the content of

the calls, does not prove that Appellant delivered fentanyl to the Victim. Id.

at 26. Last, Appellant complains that the police recklessly failed to explore

alternative suspects in dereliction of their duty.7 Id. at 29.

       Appellant’s argument fails to garner relief.    In light of the evidence

presented by the Commonwealth, including the testimony of the Victim’s

mother, brother, girlfriend, and friend, the jury reasonably inferred that: (1)

at the time of his death, Appellant was the Victim’s only drug dealer; (2) the

Victim used the pretext of exchanging video games with Appellant to purchase

drugs from him; (3) in the hours before his death, the Victim and Appellant

____________________________________________


7 Appellant also asserts that: (1) the police statement written by Detective
Schauer and signed by Appellant is insufficient proof of his guilt because it “is
not particularly incriminating,” and “of dubious legitimacy”; and (2) the
“shoddy police work involved in this case leaves plenty of room for doubt.”
Id. at 26-28. These assertions challenge the weight the jury gave to the
Commonwealth’s evidence. Appellant did not raise a challenge to the weight
of the evidence in his Pa.R.A.P. 1925(b) Statement or in his Statement of
Questions Involved in his Brief to this Court. Accordingly, he waived any
weight challenges and we will not address them.                 See Pa.R.A.P.
1925(b)(4)(vii) (explaining that any appellate issues not raised in a compliant
Rule 1925(b) statement are waived); Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”).

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communicated by phone to arrange a drug buy; (4) in the hours before his

death, the Victim went to Appellant’s residence where he used money that he

withdrew from the bank to purchase drugs from Appellant; (5) the Victim used

some of the fentanyl he purchased while at Appellant’s residence and took the

rest home; (6) the Victim used the remaining fentanyl after he got home and

died sometime that night as a result. Accordingly, Appellant’s challenge to

the sufficiency of the evidence is without merit.

       In his second issue, Appellant claims that the trial court erred in

imposing a 20 to 40 year sentence for his DDRD conviction, asserting that the

court improperly considered only the facts of the Victim’s death and

Appellant’s prior criminal history when it imposed the sentence.8 Appellant’s

Brief at 30, 32-37. Appellant’s claim presents a challenge to the discretionary

aspects of his sentence.

       Challenges     to   the   discretionary     aspects of sentencing are   not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

filed a timely notice of appeal; (2) whether the issue was properly preserved
____________________________________________


8The court indicated that, based on Appellant Prior Record Score of 5 and the
Offense Gravity Score for DDRD of 13, the applicable mitigated range sentence
would be 7 to 14 years’ incarceration, the standard range sentence would be
8 to 16 years’ incarceration, the aggravated range sentence would be 10½ to
21 years’ incarceration. The court noted that it could impose a maximum
sentence under the guidelines of 20 to 40 years’ incarceration. See N.T.
Sentencing, 5/30/19, at 11, 38-41. See also Commonwealth’s Memorandum
of Law in Support of Sentencing Recommendation, 5/21/19, at 2, 7.

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at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief sufficiently addresses the challenge in a statement included

pursuant to 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. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

      Here, Appellant satisfied the first three elements by filing a timely Notice

of Appeal, preserving the issue in a Post-Sentence Motion, and including a

Rule 2119(f) Statement in his Brief to this Court. Thus, we consider whether

Appellant has presented a substantial question for review.

      An appellant raises a “substantial question” when he “sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation

omitted).

      Here, Appellant claims that the court “largely based [Appellant’s]

extreme sentence on improper factors: an element of the offense and

[Appellant’s] prior convictions.” Appellant’s Brief at 30-31. A claim that the

sentencing court considered improper factors presents a substantial question.

Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018).

      We review discretionary aspects of sentence claims under the following

standard: “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.” Commonwealth v. Barnes, 167 A.3d 110,

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122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). A sentencing court

has broad discretion in choosing the range of permissible confinement that

best suits a particular defendant and the circumstances surrounding his or her

crime. Commonwealth v. Celestin, 825 A.2d 670, 676 (Pa. Super. 2003).

      The Sentencing Code sets forth the considerations a sentencing court

must take into account when formulating a sentence, stating that

      the court shall follow the general principle that the sentence
      imposed should call for total confinement 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. § 9721(b). “In every case where the court imposes a sentence []

outside of the guidelines . . . the court shall provide a contemporaneous

written statement of the reason or reasons for the deviation from the

guidelines[.]” Id.

      Moreover, this Court has observed that

      although the sentencing guidelines are an important factor in
      sentencing, they are but only one factor when determining an
      individualized sentence: The guidelines have no binding effect,
      create no presumption in sentencing, and do not predominate
      over other sentencing factors – they are advisory guideposts that
      are valuable, may provide an essential starting point, and that
      must be respected and considered; they recommend, however,
      rather than require a particular sentence.

Commonwealth v. Holiday, 954 A.2d 6, 13 (Pa. Super. 2008) (citation,

paragraph break, and brackets omitted).

      “[W]hen fashioning a sentence, a sentencing court may not ‘double

count’ factors already taken into account in the sentencing guidelines.”


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Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000). This

Court has held, however, that, while it is impermissible for a court to “double

count” factors already included within the sentencing guidelines as the sole

reason for increasing a sentence to the aggravated range, sentencing courts

may consider “other factors already included in the guidelines if, they are used

to supplement other extraneous sentencing information.” Commonwealth

v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003) (explaining that the

sentencing court did not abuse its discretion in considering the defendant’s

prior conviction history in conjunction with other factors like the impact on his

victim, the threat he posed to the community, the lack of successful

rehabilitation, and the fact that he was on probation and under supervision at

the time of the offense).

      Finally, where, as here, the sentencing court had the benefit of a PSI,

“it is presumed that the court is aware of all appropriate sentencing factors

and considerations, and that where the court has been so informed, its

discretion should not be disturbed.” Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009) (citation omitted). “The sentencing judge can

satisfy the requirement that reasons for imposing sentence be placed on the

record by indicating that he or she has been informed by the [PSI]; thus

properly considering and weighing all relevant factors.” Id. (citation omitted).

      In its Memorandum Order Denying Defendant’s Post-Sentence Motion,

the trial court explained, with citation to the sentencing transcript, that it

considered the factors set forth in 42 Pa.C.S. § 9721(b) when imposing

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Appellant’s sentence. Specifically, the trial court noted that it considered: (1)

Appellant’s PSI report; (2) argument of counsel; (3) Appellant’s statement to

the court; (4) the mitigated, standard, and aggravated range sentences for

DDRD; (5) the Offense Gravity Score for DDRD; (6) Appellant’s Prior Record

Score; (7) the manner, nature, and circumstances of the crime.          Trial Ct.

Order, 10/29/19, at 13-14 (citing N.T. Sentencing at 4-8,10-34, 38-39, 41-

42).

       In addition, our review of the Notes of Testimony reveals that the trial

court placed on the record the following reasons in support of Appellant’s

sentence: (1) Appellant’s recidivism; (2) the impact of Appellant’s crimes on

the Victim, the Victim’s family, and the community; (3) its concern for the

safety of the community; (4) its conclusion that a relatively short period of

incarceration would not sufficiently deter Appellant from continuing to engage

in criminal activity; and (5) Appellant has continued dealing drugs even

though he has had the opportunity to rehabilitate himself. N.T. Sentencing at

43-45.

       Following our review, we conclude that, contrary to Appellant’s

assertions, the trial court did not impermissibly “double count,” or rely

exclusively on the facts of the Victim’s death and Appellant’s prior convictions

in fashioning Appellant’s sentence. Rather, to the extent that the trial court

considered Appellant’s prior criminal convictions and that his crime resulted in

the Victim’s death, it considered them in conjunction with many other factors

including Appellant’s PSI Report, the sentencing guidelines, the nature and

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circumstances of the offense, and Appellant’s character, including his criminal

and social history, when imposing his sentence. Accordingly, the court did not

abuse its discretion in imposing Appellant’s 20 to 40 year sentence for his

DDRD conviction. Appellant’s claim, thus, warrants no relief.

      Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2020




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