J-A30025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HAROLD AUGUSTUS DAVIS, JR.                 :
                                               :
                       Appellant               :   No. 589 MDA 2019

       Appeal from the Judgment of Sentence Entered December 13, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0005533-2013


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 18, 2020

        Appellant Harold Augustus Davis, Jr. appeals from the judgment of

sentence imposed after he pled nolo contendere to two counts of aggravated

assault.1 Appellant claims that the trial court erred in denying both his pre-

sentence and post-sentence requests to withdraw his plea.         Appellant also

challenges the discretionary aspects of his sentence. We affirm.

        The facts of this case are well known to the parties. Briefly, Appellant

was arrested after he fled from a traffic stop and nearly struck a police officer.

During the incident, a second police officer was hanging onto the side of




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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2702(a)(2).
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Appellant’s truck while Appellant drove away. The officers brought Appellant’s

vehicle to a halt by shooting its engine and tires.

       On December 20, 2013, the Commonwealth filed an information

charging Appellant with four counts of aggravated assault, four counts of

simple assault, four counts of recklessly endangering another person, one

count of criminal mischief, one count of resisting arrest, and one count of

fleeing or attempting to elude an officer.2 After several continuances,3 the

matter was scheduled for a jury trial on November 15, 2018.

       On November 15, 2018, immediately before jury selection, Appellant

entered an open nolo contendere plea to two counts of aggravated assault.

N.T. Plea Hr’g, 11/15/18, at 2-8. In exchange for his plea, the Commonwealth

agreed to nolle prosse the remaining thirteen charges, including the two other

counts of aggravated assault. Id. at 3.




____________________________________________


218 Pa.C.S. §§ 2701(a)(3), 2705, 3304(a)(1), and 5104, and 75 Pa.C.S. §
3733(a), respectively.

3 It appears that this matter was delayed after the trial court held a hearing
and found that Appellant was not competent to stand trial. Appellant was
treated at Norristown State Hospital from May 2016 to October 2016. N.T.
Sentencing Hr’g, 12/13/18, at 9, 11; see also Order, 8/29/16 (deeming
Appellant incompetent for trial and recommitting Appellant to Norristown
State Hospital for additional treatment). Around June 2018, the trial court
received a report indicating Appellant was competent to stand trial. N.T.
Sentencing Hr’g at 11. This case was scheduled for a jury trial on October 15,
2018, but when Appellant suddenly became physically ill, the trial was
continued to November 15, 2018. Id. at 2, 11.

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      Before accepting Appellant’s plea, the trial court conducted an on-the-

record colloquy. During the oral colloquy, Appellant acknowledged that he

understood the nature of the charges, the factual basis for the plea, his right

to a jury trial, the presumption of innocence, and the possible sentencing

ranges for his crimes. Id. at 3-8.

      Additionally, the trial court inquired about Appellant’s decision to enter

the plea:

      THE COURT: Are you on medication?

      [Appellant]: Yes, sir.

      THE COURT: All right. The medication that you’re taking, does it
      affect your ability to understand what you’re doing?

      [Appellant]: No, sir.

      THE COURT: You understand what you’re doing this morning?

      [Appellant]: Yes, sir.

      THE COURT: All right. I will note for the record that attached to
      the [written plea colloquy] is a list of drugs which [Appellant] is
      currently taking.

                                  *    *    *

      THE COURT: Are you doing this voluntarily?

      [Appellant]: Yes, sir.

      THE COURT: No one is forcing you to this, correct?

      [Appellant]: No, sir.

Id. at 4, 6.




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      Appellant also executed a written plea colloquy, in which he indicated

that he suffered from post-traumatic stress disorder (PTSD) and was on

medication. Written Plea Colloquy, 11/15/18, at 7 (unpaginated); N.T. Plea

Hr’g at 2, 4. A list of Appellant’s current medications was attached to the

written plea colloquy and made part of the record. Id. At the conclusion of

the hearing, the trial court accepted Appellant’s plea. See N.T. Plea Hr’g at

8. The sentencing hearing was deferred for the Commonwealth to present

victim impact testimony from the police officers. Id. at 9-10.

      On December 13, 2018, the trial court held a sentencing hearing. At

the outset of the hearing, Appellant’s counsel made an oral motion to withdraw

the nolo contendere plea. See N.T. Sentencing Hr’g, 12/13/18, at 2. Counsel

stated that

      [a]s a preliminary matter, [Appellant] asked me to make a motion
      to withdraw his plea. So I will make that motion. I also advised
      him at the time he entered the plea he signed the deferment form
      saying that he would agree not to withdraw his plea at that time.
      He’s asked me and stated to me that he wants to withdraw his
      plea.

Id. at 2.

      The trial court responded that at the plea hearing, Appellant completed

a written plea colloquy and participated in an oral colloquy to confirm that he

understood his rights.   Id. at 3.   The court noted that in both colloquies,

Appellant indicated that his plea was voluntary. Id. The trial court informed

Appellant, “[y]our attorney has made an oral motion to allow you to withdraw




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your guilty plea, which I’m going to deny[,]” after which the following

exchange occurred:

      [Appellant]: Can I say something? Pathological liar too. I am not
      aware what is going on, you know. It was in the form. He was
      trying to tell me to plead guilty.

      THE COURT: No. I didn’t tell you to plead guilty. You voluntarily
      ---

      [Appellant]: My wife passed away. My son got killed by a police
      [sic] and you’re telling me to play with my life. I withdraw this
      case.

      THE COURT: Okay. Are we ready?

Id. Thereafter, the trial court proceeded with the sentencing hearing. Id.

      During the police officer’s victim impact testimony, Appellant interjected

several times to challenge the officer’s version of events and to call him a liar.

Id. at 4-6. The trial court advised Appellant that he would have his chance to

speak, but Appellant indicated that he “didn’t want to hear this shit” and did

not “want to talk.” Id. at 6. After that, the trial court noted for the record

that “the record should reflect that [Appellant] is out of control, [we] got two

deputy sheriffs that are trying to restrain him and he won’t. So we’re going

to proceed without him.” Id. at 8. Ultimately, Appellant was removed from

the courtroom and the sentencing hearing continued in his absence. Id. at 8,

14.

      Appellant’s counsel reiterated that the pre-sentence investigation report

(PSI) indicated that Appellant suffered from PTSD and anxiety. Id. at 9. He




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also stated that Appellant had completed drug and alcohol treatment and did

not have any disciplinary problems while in custody. Id. at 10.

      In addition to the PSI, the trial court had several psychiatric reports

relating to Appellant’s mental health and a report that Appellant completed

drug and alcohol outpatient program while in custody. See N.T. Sentencing

Hr’g at 9-12. The trial court indicated that it was familiar with Appellant’s

history and “probably looked at something for [Appellant] about once every

three months for the last three years.” Id. at 13.

      The trial court also observed that Appellant had a history of disruptive

and aggressive behavior:

      [Appellant] is a very dangerous individual. Every time [Appellant]
      comes in here he causes a raucous [sic]. He gives everybody in
      this courtroom a hard time. We have always needed extra
      deputies every time he comes in here.

      Obviously, [Appellant] is a violent individual. . . . I think in three
      years we have had one or two calm conversations. Every other
      conversation when he’s been competent enough to understand
      what was going on has always been -- he’s always been a very
      aggressive individual. . . .

Id. at 13.

      Further, the trial court reflected on the dangerous nature of Appellant’s

actions, including fact that the officers shot the engine and tires of Appellant’s

truck to “prevent that truck from speeding away with somebody hanging onto

the side of it” and stated “quite frankly, [Appellant] used that vehicle as a

weapon that day as far as I’m concerned.” Id. at 12.




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       The trial court sentenced Appellant to two consecutive terms of six to

fifteen years of imprisonment for a total sentence of twelve to thirty years of

imprisonment.

       Appellant filed a post-sentence motion on December 21, 2018, seeking

to withdraw his nolo contendere plea on the grounds that his mental health

issues and medication rendered him incapable of making a knowing,

voluntary, and intelligent plea. Post-Sentence Mot., 12/21/18, at ¶¶ 19-23.

Appellant’s post-sentence motion also requested that the trial court modify

his sentence. Id. at ¶¶ 24-29.

       On February 27, 2019, the trial court held a hearing on the post-

sentence motion. Appellant’s counsel argued that Appellant’s alleged inability

to make a knowing, voluntary, and intelligent plea because of his mental

health issues and medications (1) were fair and just reasons to withdraw his

plea prior to sentencing and (2) satisfied the manifest injustice standard to

withdraw his plea after sentencing. N.T. Post-Sentence Mot. Hr’g, 2/27/19 at

2-4. The trial court denied the motion on March 26, 2019. Appellant filed a

timely notice of appeal on April 9, 2019. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.4

____________________________________________


4 In his Rule 1925(b) statement, Appellant presented the following issues: (1)
the trial court erred in denying Appellant’s motion to withdraw his nolo
contendere plea prior to sentencing; (2) the trial court erred in denying
Appellant’s post-sentence motion to withdraw his nolo contendere plea; and
(3) the trial court abused its discretion in sentencing Appellant to an aggregate



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       Appellant raises three issues, which we have reordered for our review:

       1. Whether the trial court erred in denying Appellant’s motion to
          withdraw his nolo contendere plea prior to sentencing.

       2. Whether the trial court erred in denying Appellant’s post-
          sentence motion to withdraw his nolo contendere plea.

       3. Whether the trial court abused its discretion in sentencing
          Appellant to an aggregate term of twelve (12) to thirty (30)
          years of incarceration.

Appellant’s Brief at 7.

       Appellant’s first two claims relate to his requests to withdraw his nolo

contendere plea. Initially, we note that “for purposes of a criminal case, a

plea of nolo contendere is equivalent to a plea of guilty.” Commonwealth v.

Norton, 201 A.3d 112, 114 n.1 (Pa. 2019) (citation omitted). “Our law is

clear that, to be valid, a guilty plea must be knowingly, voluntarily and

intelligently entered.” Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.

Super. 2003) (citation omitted); see also Commonwealth v. Willis, 68 A.3d

997, 1002 (Pa. Super. 2013).

       A criminal defendant “has no absolute right to withdraw a guilty plea;

rather, the decision to grant such a motion lies within the sound discretion of

the trial court.” Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa.



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term of twelve to thirty years of incarceration where the sentence was
excessive, the trial court did not consider Appellant’s rehabilitative needs, and
the trial court improperly considered other charges which were not part of
Appellant’s plea. Rule 1925(b) Statement at 1-2 (unpaginated).


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Super. 2002) (citation omitted). We review the denial of a motion to withdraw

a guilty plea for an abuse of discretion. Commonwealth v. Gordy, 73 A.3d

620, 624 (Pa. Super. 2013). “An abuse of discretion is not a mere error in

judgment but, rather, involves bias, ill will, partiality, prejudice, manifest

unreasonableness, and/or misapplication of law.” Id. (citation omitted).

       In his first claim, Appellant argues that the trial court erred by denying

his pre-sentence motion to withdraw his nolo contendere plea. Appellant’s

Brief at 17. Appellant maintains that he was under the influence of medication

and, as a result, his plea was not knowing, voluntary, or intelligent. Id. at

15. He asserts that the trial court “failed to conduct an on-the-record inquiry

into Appellant’s reasons for withdrawing the plea.” Id. at 21. Further, he

contends that he was denied an “opportunity to state his reasons for

withdraw[al] on the record.” Id. at 22. Appellant claims that although he

attempted to explain the reasons for his motion, the trial court disregarded

his statements and proceeded to sentencing “without consideration as to

whether he had “fair and just reasons” for withdrawing his plea.5 Id. at 21-

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5 We note that an appellant has the duty to develop his arguments for
appellate review with cites to the record and relevant legal authorities.
Pa.R.A.P. 2119(a)-(c); Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.
Super. 2010). Where an appellant fails to do so, but the error does not impede
our ability to review the issues, we will address the claim on the merits.
Werner v. Werner, 149 A.3d 338, 341 (Pa. Super. 2016). In the summary
of argument portion of his brief, Appellant states he was under influence of
medication and, as a result, his plea was not knowing, voluntary, or intelligent.
Appellant’s Brief at 15. Appellant does not explain in the argument portion of



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22. Finally, Appellant asserts that the Commonwealth would not have been

prejudiced as a result of the withdrawal. Id. at 24-27.

       A defendant’s burden of proof for withdrawing a guilty plea “differs

depending on whether the defendant seeks to withdraw the plea before or

after sentencing.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super.

2017). In the context of a pre-trial motion to withdraw a plea, our Supreme

Court has stated:

       [T]here is no absolute right to withdraw a guilty plea; trial courts
       have discretion in determining whether a withdrawal request will
       be granted; such discretion is to be administered liberally in favor
       of the accused; and any demonstration by a defendant of a fair-
       and-just reason will suffice to support a grant, unless withdrawal
       would work substantial prejudice to the Commonwealth.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015)

(citation and footnote omitted); see also Pa.R.Crim.P. 591(A) (stating that

“[a]t any time before the imposition of sentence, the court may, in its

discretion, permit . . . the withdrawal of a plea”).

       The determination of whether there is a “fair and just reason” is based

on the totality of the circumstances. Commonwealth v. Tennison, 969 A.2d

572, 573 (Pa. Super. 2009). We have explained that

       [t]he proper inquiry . . . is whether the accused has made some
       colorable demonstration, under the circumstances, such that
       permitting withdrawal of the plea would promote fairness and
       justice. The policy of liberality remains extant but has its limits,
____________________________________________


his brief how his medication affected his ability to enter the plea.
Nevertheless, because we can discern his argument, we will address it on the
merits. See Werner, 149 A.3d at 341.

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       consistent with the affordance of a degree of discretion to the
       common pleas courts.

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 24 (Pa. Super. 2017)

(citation omitted).

       The comment to Rule 591(A) provides that “[w]hen the defendant orally

moves to withdraw a plea of guilty or nolo contendere at the sentencing

hearing, the court should conduct an on-the-record colloquy to determine

whether a fair and just reason to permit the withdrawal of the plea exists.”

Pa.R.Crim.P. 591(A) cmt.6

       However, Pennsylvania courts have “issued clear holdings that the

denial of such a motion is proper where the evidence before the court belies

the reason offered.” Tennison, 969 A.2d at 578 (citation omitted); see also

Commonwealth v. Culsoir, 209 A.3d 433, 438-39 (Pa. Super. 2019) (finding

no “fair and just reason” for the trial court to grant the defendant’s pre-

sentence motion to withdraw his guilty plea because he did not assert his

innocence and instead “baldly recant[ed] his representations made under oath

to the court”).

       Here, the record belies Appellant’s claim that he should have been

allowed to withdraw his plea because he was not able to enter a knowing,


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6We note that “[a]lthough the Comments are not part of the Rules and have
not been officially adopted or promulgated by this court . . . a court may rely
on the Comments to construe and apply the Rules.” Commonwealth v.
Lockridge, 810 A.2d 1191, 1196 (Pa. 2002) (citations omitted).


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voluntary, and intelligent plea. During the plea colloquy, Appellant confirmed

that no one forced him to enter a plea and that the decision was his own.

Further, Appellant confirmed that although he was on medication, it did not

affect his ability to understand the proceedings.       The trial court had the

opportunity to observe Appellant’s demeanor and was aware of Appellant’s

history of behavioral and mental health issues. Accordingly, the trial court

properly accepted Appellant’s plea as knowing, voluntary, and intelligent and

denied Appellant’s pre-sentence motion to withdraw his plea. Cf. Willis, 68

A.3d at 1009 (discussing cases where a defendant who was on medication,

but showed no signs that he did not understand the proceedings, could not

withdraw his plea on the grounds that he was taking medication).

      We acknowledge that the trial court did not conduct a formal on-the-

record colloquy after Appellant requested to withdraw his plea.              See

Pa.R.Crim.P. 591(A) cmt. However, the absence of a formal colloquy did not

prevent the trial court from determining whether Appellant had a fair and just

reason for the withdrawal. In his post-sentence motion, Appellant argued that

his mental health issues and medication rendered him incapable of making a

knowing, voluntary, and intelligent plea. He argued, in relevant part, that this

satisfied the fair and just reason standard. Post-Sentence Mot. at ¶¶ 16-23.

The trial court rejected that argument concluding Appellant did not satisfy the

fair and just standard to withdraw his plea prior to sentencing. Accordingly,

we find that the trial court’s failure to conduct a colloquy regarding Appellant’s


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reasons for seeking to withdraw his plea prior to sentencing was not reversible

error.

         In sum, having reviewed the totality of the circumstances, we discern

no abuse of discretion by the trial court in denying Appellant’s pre-sentence

motion to withdraw his plea.7 See Johnson-Daniels, 167 A.3d at 24; Gordy,

73 A.3d at 624; see also Culsoir, 209 A.3d at 438. Therefore, Appellant’s

first issue fails.

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

his post-sentence motion to withdraw his plea.             Appellant’s Brief at 40.

Appellant argues that because the trial court failed to comply with the proper

procedure for denying his motion to withdraw his plea prior to sentencing, the

trial court’s denial of his post-sentence motion was also erroneous. Id. at 40-

41.   In support, Appellant rests on the same arguments that he raised in

support of his first claim.8 Id. at 40.

         This Court has explained that

         the decision to allow a defendant to withdraw a plea post-sentence
         is a matter that rests within the sound discretion of the trial court.
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7 Because we agree with the trial court that Appellant failed to present a fair
and just reason to withdraw his guilty plea, we need not address whether the
Commonwealth would have suffered prejudice if the court permitted Appellant
to withdraw his plea.

8 Appellant did not address the “manifest injustice” standard at any point in
his brief. However, the standard was included in his post-sentence motion
and argued at the hearing on said motion. Because we can readily discern
the basis for Appellant’s argument, we decline to find waiver. See Werner,
149 A.3d at 341.

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      Moreover, a request to withdraw a guilty plea after sentencing is
      subject to higher scrutiny since courts strive to discourage the
      entry of guilty pleas as sentence-testing devices. Therefore, in
      order to withdraw a guilty plea after the imposition of sentence, a
      defendant must make a showing of prejudice which resulted in a
      manifest injustice. A defendant meets this burden only if he can
      demonstrate that his guilty plea was entered involuntarily,
      unknowingly, or unintelligently.

      Once a defendant enters a guilty plea, it is presumed that he was
      aware of what he was doing. Consequently, defendants are bound
      by statements they make during their guilty plea colloquies and
      may not successfully assert any claims that contradict those
      statements.

Culsoir, 209 A.3d at 437 (citations omitted and formatting altered).

      Although not constitutionally mandated, a proper plea colloquy ensures

that a defendant’s plea is truly knowing and voluntary. Commonwealth v.

Maddox, 300 A.2d 503, 504 (Pa. 1973) (citation omitted).           “A valid plea

colloquy must delve into six areas: 1) the nature of the charges, 2) the factual

basis of the plea, 3) the right to a jury trial, 4) the presumption of innocence,

5) the sentencing ranges, and 6) the plea court’s power to deviate from any

recommended sentence.” Commonwealth v. Reid, 117 A.3d 777, 782 (Pa.

Super. 2015) (quotation marks and citations omitted); see also Pa.R.Crim.P.

590 cmt. (setting forth a non-exhaustive list of questions a trial judge should

ask before accepting a plea).

      Further, nothing in Rule 590 “precludes the supplementation of the oral

colloquy by a written colloquy that is read, completed, and signed by the

defendant and made a part of the plea proceedings.”        Commonwealth v.

Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008) (citation omitted). “In

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determining whether a plea is valid, the court must examine the totality of

circumstances surrounding the plea. Pennsylvania law presumes a defendant

who entered a guilty plea was aware of what he was doing, and the defendant

bears the burden of proving otherwise.” Hart, 174 A.3d at 665 (quotation

marks and citation omitted).

      Here, the trial court addressed Appellant’s claim as follows:

      In fact, in ascertaining if the plea of nolo contendere was
      voluntarily and understandingly tendered, this [c]ourt specifically
      asked [Appellant] whether any medication affected his ability to
      understand, to which [Appellant] answered, “No, sir.” [Appellant]
      also indicated that he understood what he was doing, he was
      acting voluntarily, and no one forced him to enter a plea.

See Trial Ct. Op., 6/13/19, at 5 (record citations omitted).

      Based on our review of the record, we discern no abuse of discretion by

the trial court in denying Appellant’s post-sentence motion to withdraw his

plea. See Culsoir, 209 A.3d at 437. Appellant indicated in his written plea

colloquy that he suffered from PTSD and was on medication. See Written Plea

Colloquy at 7 (unpaginated).       However, during the oral plea colloquy,

Appellant confirmed that his medication did not affect his ability to understand

what he was doing.     See N.T. Plea Hr’g at 4.     Appellant is bound by his

statements during the colloquy, which demonstrate that he knowingly entered

his plea. See Pollard, 832 A.2d at 523; see also Willis, 68 A.3d at 1009

(holding that where defendant admitted during plea colloquy that he taking

medication but “specifically denied the medication affected his abilities or




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judgment” he could not later contradict those statements and argue his guilty

plea was not knowing, voluntary, and intelligent).

      Further, the totality of the circumstances surrounding the plea supports

the trial court’s conclusion that Appellant knowingly, voluntarily, and

intelligently entered his plea. See Hart, 174 A.3d at 664. Appellant has failed

to carry the burden of proving otherwise. See id. at 664-65.

      In his final issue, Appellant challenges the discretionary aspects of his

sentence. Appellant argues that his total sentence of twelve to thirty years’

imprisonment for aggravated assault, consisting of two consecutive terms of

seventy-two months to fifteen years of imprisonment, is excessive.

Appellant’s Brief at 30-40. Appellant contends that the trial court failed to

adequately consider Appellant’s rehabilitative needs as a mitigating factor.

Id. at 30-36.    Appellant also argues that the trial court erred when it

improperly considered nolle prossed charges as a factor in fashioning

Appellant’s sentence. Id. at 36-40.

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Before reaching the merits of such

claims, we must determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
      2119(f)] 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


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      substantial question that the sentence is inappropriate under the
      sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations

omitted). We have explained that “[i]f a defendant fails to include an issue in

his Rule 2119(f) statement, and the Commonwealth objects, then the issue is

waived and this Court may not review the claim.” Commonwealth v. Karns,

50 A.3d 158, 166 (Pa. Super. 2012) (citation omitted).

      Here, Appellant did not include a Rule 2119(f) statement in his brief,

and the Commonwealth objected in its brief. See Commonwealth’s Brief at

15. Appellant thereafter filed a petition for leave to amend appellant’s brief

seeking to add a section pursuant to Pa.R.A.P. 2119(f) to his brief. Appellant

cites Commonwealth v. Gambal, 561 A.2d 710 (Pa. 1989), in support of his

request to amend his brief. In Gambal, the Commonwealth did not object to

the absence of the Pa.R.A.P. 2119(f) statement, and the Supreme Court held

an appellate court may proceed with a determination of whether a substantial

question was presented for review. Gambal, 561 A.2d at 712-13.

      Here, Commonwealth objected to the absence of a Rule 2119(f)

statement from Appellant’s brief. Appellant’s request for leave to amend his

brief after the Commonwealth has objected to the defect does not save this




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issue from waiver. Therefore, we are constrained to conclude that Appellant’s

sentencing issue is waived. See Karns, 50 A.3d at 166.9

____________________________________________


9 Even if Appellant had not waived his claim, he would not be entitled to relief.
Appellant raises two claims of error at sentencing: (1) the trial court failed to
consider Appellant’s rehabilitative needs as a mitigating factor and imposed
an excessive sentence by running the sentences consecutively, and (2) the
trial court improperly considered charges which had been nolle prossed as part
of the plea agreement in imposing sentence. Appellant’s Brief at 30-40. These
claims raise a substantial question. See Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014); Commonwealth v. Dodge, 77 A.3d 1263,
1274 (Pa. Super. 2013).

       Turning to the merits of Appellant’s claim, we observe that

       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. 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. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation
omitted), appeal denied, 206 A.3d 1029 (Pa. 2019).

       In his first claim, Appellant argues that the trial court did not give
sufficient weight to his rehabilitative needs, i.e., his history of mental illness.
“[W]here, as here, the sentencing court had the benefit of a pre-sentence
investigation report, we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (quotation marks and citation
omitted). Reading the entire rationale of the trial court in sentencing
Appellant, it is clear that the trial court considered a wide range of factors
including the nature of the crimes, the fact there were multiple victims, the
need for protection of the public, Appellant’s mental health issues, and
Appellant’s demeanor in court. N.T. Sentencing Hr’g at 10-15. The trial court
need not expressly address all mitigating circumstances presented, rather it



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       Judgment of sentence affirmed.              Petition for leave to amend brief

denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2020




____________________________________________


is only required to state the reasons for the sentence imposed on the record.
See Commonwealth v. Samuel, 102 A.3d 1001, 1007-08 (Pa. Super.
2014).

      As for Appellant’s second claim, i.e., the trial court inappropriately
considered charges that had been nolle prossed, the record shows the trial
court observed that the aggregate sentence it imposed was less than the total
permissible sentence it could have been imposed if Appellant went to trial and
was found guilty of all charges. N.T. Sentencing Hr’g at 13-14. Here, the trial
court’s passing reference to charges that were nolle prossed did not indicate
that the court improperly relied on those charges to impose a harsher
sentence. See Miller, 965 A.2d at 280. Therefore, no relief is due.

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