J-S13008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DAJON ANTHONY SMITH,

                         Appellant                    No. 375 WDA 2014


    Appeal from the Judgment of Sentence Entered November 21, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0016741-2012


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 1, 2015

      Appellant, Dajon Anthony Smith, appeals from the judgment of

sentence of 30-60 months’ incarceration and a consecutive year of

probation, following his conviction for carrying a firearm without a license.

Appellant claims the trial court erred when it denied his motion to suppress

the seized firearm, and that the sentence imposed constituted an abuse of

the court’s discretion. After careful review, we affirm.

      The trial court summarized the facts relevant to this appeal as follows:

            On November 11, 2012, Officer James Goss of the City of
      McKeesport Police Department, a[n] [officer for] ten (10) year[s]
      …, was patrolling in a marked patrol unit … within the [City of
      McKeesport] when he observed [Appellant] and a second male.
      This area of the City of McKeesport is a very high crime area,
      with the officer[‘s] having handled five (5) homicides within a
      [nearby] city block. Officer Goss had just turned onto 13th
      Street when he noticed [Appellant] and the second individual
      walking towards him. As his cruiser passed the men, he noticed
      them looking "very nervously" toward him.          He then saw
J-S13008-15


     [Appellant] reach towards the center of the waistband of his
     pants with both hands as if to conceal something. Officer Goss
     recognized the individual reaching for his waistband as
     [Appellant] from prior encounters with him. The men continued
     to look at Officer Goss nervously even after he had passed them.

            Officer Goss made a right turn onto Jenny Lind Street, and
     then turned his car around to initiate contact with [Appellant].
     He contacted a fellow officer, Officer Matthews, for back-up
     support as he proceeded back towards [Appellant]. Officer Goss
     parked his vehicle, exited it and began walking toward
     [Appellant] and his companion, asking them to remove their
     hands from their pockets and place them behind their heads.
     Officer Goss requested that [Appellant] and his companion show
     their hands for officer safety. He believed that [Appellant] might
     be concealing a firearm due to a prior experience with him. As
     he was requesting to see their hands, Officer Matthews was
     approaching the two (2) men from behind, on foot. [Appellant]
     looked behind him nervously, toward Officer Matthews, who was
     in uniform and driving a marked police unit. [Appellant] then
     fled, with Officer Matthews giving chase.

           [Appellant] fled towards the Harrison Village area of the
     City of McKeesport, with Officer Matthews, a seven (7) year
     police veteran, giving chase. Officer Matthews noticed that
     [Appellant] was holding the right side of his pants[’] waistband
     area as he fled. As [Appellant] ran between Buildings One (1)
     and Two (2) in Harrison Village, Officer Matthews saw him throw
     a silver firearm from his waistband.           Officer Matthews
     immediately stopped his pursuit and recovered a firearm from a
     dumpster. It should be noted that there was no one else
     running near [Appellant] when the officer observed the firearm
     being thrown.

Trial Court Opinion (TCO), 10/1/2014, 2-4.

     When subsequently arrested, Appellant was charged by criminal

information with carrying an unlicensed firearm, 18 Pa.C.S. § 6106, and

possession of a firearm with an altered manufacturer’s number, 18 Pa.C.S. §

6110.2. Appellant filed a motion to suppress the seized firearm on May 16,




                                   -2-
J-S13008-15



2013. That motion was denied following a suppression hearing held on June

19, 2013.

      Appellant proceeded to a jury trial on August 22, 2013. On August 23,

2013, the jury convicted Appellant of carrying an unlicensed firearm, but

acquitted him of possession of a firearm with an altered manufacturer’s

number. On November 21, 2013, the trial court sentenced Appellant to 30-

60 months’ incarceration and a consecutive term of probation of one year.

      Appellant filed a timely post-sentence motion seeking reconsideration

of sentence, which was considered by the trial court at a hearing held on

February 7, 2014. The trial court denied Appellant’s post-sentence motion

by order dated February 10, 2014. Appellant then filed a timely notice of

appeal on March 7, 2014, and a timely Pa.R.A.P. 1925(b) statement of

errors complained of on appeal on April 8, 2014. The trial court issued its

Rule 1925(a) opinion on October 1, 2014.

      Appellant now presents the following questions for our review, which

we will address ad seriatum:

       I.   Did the [trial] court err by denying [Appellant]’s motion to
            suppress [the] evidence obtained from an investigatory
            detention conducted without reasonable suspicion?

      II.   Did the [trial] court abuse its discretion by imposing a
            manifestly unreasonable and excessive sentence which
            failed to account for significant mitigating evidence and
            [Appellant]’s extraordinary rehabilitative needs?

Appellant’s Brief, at 5 (unnecessary capitalization omitted).

      Appellant’s first claim concerns the denial of his suppression motion.



                                     -3-
J-S13008-15


           Our standard of review in addressing a challenge to the
     denial of a suppression motion is limited to determining whether
     the suppression court's factual findings are supported by the
     record and whether the legal conclusions drawn from those facts
     are correct. Because the Commonwealth prevailed before the
     suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record
     as a whole. Where the suppression court's factual findings are
     supported by the record, we are bound by these findings and
     may reverse only if the court's legal conclusions are erroneous.
     Where, as here, the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court's legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts.           Thus, the
     conclusions of law of the courts below are subject to our plenary
     review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012)).

     Appellant contends that the trial court erred when it determined that

Appellant was subjected to a mere encounter, rather than an investigative

detention.

            Article I, § 8 of the Pennsylvania Constitution and the
     Fourth Amendment to the United States Constitution both
     protect the people from unreasonable searches and seizures.
     Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003)
     (citation omitted). Jurisprudence arising under both charters has
     led to the development of three categories of interactions
     between citizens and police. Id. (citations omitted). The first, a
     “mere encounter,” does not require any level of suspicion or
     carry any official compulsion to stop or respond. The second, an
     “investigative detention,” permits the temporary detention of an
     individual if supported by reasonable suspicion. The third is an
     arrest or custodial detention, which must be supported by
     probable cause. Id. (citations omitted).


                                   -4-
J-S13008-15


              In evaluating the level of interaction, courts conduct an
        objective examination of the totality of the surrounding
        circumstances. Commonwealth v. Strickler, 563 Pa. 47, 757
        A.2d 884, 889 (2000) (citations omitted). We are bound by the
        suppression court's factual findings, if supported by the record;
        however, the question presented—whether a seizure occurred—
        is a pure question of law subject to plenary review.         See
        Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
        (2010) (citations omitted).

               The totality-of-the-circumstances test is ultimately
        centered on whether the suspect has in some way been
        restrained by physical force or show of coercive authority.
        Strickler, [757 A.2d] at 890 (citation omitted). Under this test,
        no single factor controls the ultimate conclusion as to whether a
        seizure occurred—to guide the inquiry, the United States
        Supreme Court and this Court have employed an objective test
        entailing a determination of whether a reasonable person would
        have felt free to leave or otherwise terminate the encounter.
        Id., at 890 n.8 (citation omitted).       “[W]hat constitutes a
        restraint on liberty prompting a person to conclude that he is not
        free to ‘leave’ will vary, not only with the particular police
        conduct at issue, but also with the setting in which the conduct
        occurs.” Michigan v. Chesternut, 486 U.S. 567, 573–74, 108
        S.Ct. 1975, 100 L.Ed.2d 565 (1988) (citations omitted).

Commonwealth v. Lyles, 97 A.3d 298, 302-03 (Pa. 2014).

        Here, the trial court concluded that Appellant was not seized when he

was told to remove his hands from his pockets and to place them behind his

head.     In reaching this conclusion, the court considered several factors.

First, the court considered Officer Goss’ “intention at the time of his

interaction with [Appellant] to engage in a ‘mere encounter.’”      TCO, at 5.

Second, Officer Goss did not draw or otherwise brandish his firearm when he

approached and spoke to Appellant. Id. at 5-6. Third, Officer Goss neither

ordered Appellant to stop, nor advised Appellant that he was not free to

leave. Id. at 6. Fourth, Officer Goss “requested that [Appellant] reveal his


                                      -5-
J-S13008-15



hands for purposes of officer safety.”           Id.1   Finally, the court found that

Officer Goss had not used “commanding language, yelled or raised his

voice.”     Id.    Instead, Officer Goss had said “please” when he asked

Appellant to reveal his hands.          Id.    Based on these facts, the trial court

concluded that Officer Goss’ interaction with Appellant was a mere encounter

and, thus, did not rise to the level of an investigative detention.              We

disagree.

       First, and foremost, Officer Goss did not merely ask Appellant to reveal

his hands. The record demonstrates that Officer Goss testified that he told

Appellant, “Can you please take your hands out of your pockets,” and “place

your hands behind your head.” N.T. Suppression, 6/19/13, at 10 (emphasis

added).2    This Court has previously recognized that a request by a police

officer for a defendant to remove his or her hands from his or her pockets,
____________________________________________


1
 Relatedly, the trial court found that this request was reasonable because of
Officer Goss’ prior interactions with Appellant, which had involved
Appellant’s possession of a firearm. Id.
2
  At another time during the suppression hearing, Officer Goss claimed that
he told Appellant: “Take your hands out of your pocket. Put your hands out
so I can see them.” Id. at 20. Notably, this second version of Officer Goss’
statement clearly takes a more commanding tone than the first version,
although the order to place Appellant’s hands behind his head is absent.
Regardless, the trial court chose to credit the first version of Officer Goss’
‘request’ in its recitation of the facts, and the court did not mention the
second version in its analysis of this matter. Accordingly, we rely on the first
version for our own analysis as well. See McAdoo, 46 A.3d at 783 (“Where
the suppression court's factual findings are supported by the record, we are
bound by these findings[.]”); accord Lyles, 97 A.3d at 302.




                                           -6-
J-S13008-15



for officer safety purposes, does not automatically elevate a mere encounter

to an investigative detention. See Commonwealth v. Coleman, 19 A.3d

1111, 1117 (Pa. Super. 2011) (citing Commonwealth v. Carter, 779 A.2d

591, 594 (Pa. Super. 2001), and Commonwealth v. Hall, 713 A.2d 650,

653 (Pa. Super. 1998), rev'd on other grounds, 771 A.2d 1232 (Pa. 2001)).

However, this case is clearly distinguishable because Officer Goss asked

Appellant to put his hands behind his head. Regardless of the officer’s use

of the word “please,” no reasonable person “would have felt free to leave or

otherwise terminate the encounter” when confronted with such a request

from a uniformed police officer.   Lyles, 97 A.3d at 303.   Removing one’s

hands from one’s pockets is a minor intrusion on one’s liberty when

compared to the request to assume an inherently submissive body position.

Moreover, Officer Goss made this ‘request’ at the beginning of the

encounter. This is not a case, therefore, where during the course of a mere

encounter, a defendant places his hands in his pockets, thus giving rise to

concerns for officer safety that were not already present. Here, Officer Goss

initiated the contact with Appellant with the request that Appellant assume a

submissive body position.

      Second, Officer Goss was not the only police officer involved in this

interaction.   Officer Goss had called for backup despite his purported

intention to engage in a mere encounter.        When Officer Goss ‘asked’

Appellant to reveal his hands and place them behind his head, Officer

Matthews was approaching Appellant from behind. And, according to Officer

                                    -7-
J-S13008-15



Goss, Appellant was aware that Officer Matthews was approaching him from

behind when this occurred.3

       Third, Officer Goss’ subjective intent to engage in a mere encounter,

contrary to the trial court’s analysis, was not a relevant factor. While courts

apply a totality-of-the-circumstances test to the question of whether an

individual is seized, that inquiry is directed toward the question of “whether

a reasonable person would have felt free to leave or otherwise terminate the

encounter.” Lyles, 97 A.3d at 303. Officer Goss’ subjective intent is not at

all relevant to this inquiry, although his intent may have been relevant for

some other purpose (such as to determine his credibility).

       We find Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super.

1991), to be instructive in this case. In Martinez, two police officers, while

driving in their unmarked police vehicle, pulled up alongside the defendant

and asked her “would she come over here, turn around and take her hands

out of the jacket, and put her hands on the car.” Id. at 515. The officers

then exited the vehicle and approached the defendant from different sides.

Id. Given these circumstances, the Martinez Court held that she “had been

‘seized’ for Fourth Amendment purposes.” Id.




____________________________________________


3
 Officer Goss testified that just prior to taking flight, Appellant had looked
back at Officer Matthews “nervously.” N.T., 6/19/13, at 11.




                                           -8-
J-S13008-15



       Similarly, given the totality of the circumstances in this case, we

conclude that Officer Goss did not engage in a mere encounter. Appellant

was seized when Officer Goss asked that Appellant place his hands behind

his head while Officer Matthews approached Appellant from behind.             No

reasonable person would have felt free to walk away from Officer Goss and

Officer Matthews in such circumstances.          Thus, we conclude that the trial

court erred when it determined that Appellant was only subjected to a mere

encounter before he fled. However, our inquiry is not at an end. We must

next consider whether Officer Goss possessed reasonable suspicion to

subject Appellant to an investigatory detention.4

____________________________________________


4
   In his Rule 1925(b) statement, Appellant preserved the question of
whether this seizure arose to the level of a custodial detention, an
interaction that would have required probable cause. However, Appellant’s
brief is exclusively dedicated to the argument that the police lacked
reasonable suspicion to conduct an investigatory detention. See Appellant’s
Brief, at 12 (“[Appellant] was subjected to an investigatory detention, and
not simply a ‘mere encounter,’ when a uniformed police officer stopped him
on the street, ordered him to place his hands on his head, and called for
back-up to assist with securing the scene. This stop was conducted without
reasonable suspicion….”). Accordingly, we deem waived the question of
whether Appellant was subjected to a custodial detention. Nevertheless, if
Appellant had preserved that claim for our review, we would have found that
it lacked merit.     The totality of the circumstances present in this case
establish that Appellant was not subjected to the functional equivalent of an
arrest and, therefore, that probable cause was not required to justify the
seizure that occurred, because: 1) the duration of the investigative detention
was extremely limited in due to Appellant’s immediate flight afterwards; 2)
Appellant was never handcuffed or placed into a police vehicle; and 3)
neither Officer Goss nor Officer Matthews had drawn their weapons.
Commonwealth v. Douglass, 539 A.2d 412, 418 (Pa. Super. 1988) (“A
‘custodial detention’ must be supported by probable cause; it is deemed to
(Footnote Continued Next Page)


                                           -9-
J-S13008-15


      In the seminal case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
      20 L.Ed.2d 889 (1968), the United States Supreme Court
      indicated that police may stop and frisk a person where they had
      a reasonable suspicion that criminal activity is afoot. In order to
      determine whether the police had a reasonable suspicion, the
      totality of the circumstances—the whole picture—must be
      considered. United States v. Cortez, 449 U.S. 411, 417, 101
      S.Ct. 690, 66 L.Ed.2d 621 (1981). “Based upon that whole
      picture the detaining officers must have a particularized and
      objective basis for suspecting the particular person stopped of
      criminal activity.” Id. at 417–18, 101 S.Ct. 690.

In re D.M., 781 A.2d 1161, 1163 (Pa. 2001).

      The    trial   court    relies   on   the      fact   that   Appellant   engaged   in

“unprovoked” flight from police in a high crime area to conclude that the

police had reasonable suspicion to engage in a Terry stop.5 TCO, at 8. We

disagree. As noted above, Appellant was seized in the moment before he

fled. As such, it is inappropriate to consider whether his flight from police

was a factor upon which a finding of reasonable suspicion could be based.


                       _______________________
(Footnote Continued)

arise when the conditions and/or duration of an investigating detention
become so coercive as to be the functional equivalent of arrest.”).
5
  In D.M., our Supreme Court held that reasonable suspicion can be found
when a defendant engages in flight from police in a high crime area. Id. at
1164 (relying on Illinois v. Wardlow, 528 U.S. 119 (2000)). Although the
D.M. Court employed the term “unprovoked” to describe D.M.’s flight (as did
the Wardlow Court to describe Wardlow’s flight), the D.M. Court made no
attempt to distinguish between ‘provoked’ and ‘unprovoked’ flight. Indeed,
usage of the term, although ubiquitous, is confusing, if not merely
superfluous. Clearly, as was the case both in D.M. and Wardlow, it is flight
provoked by police that is the relevant factor that reasonably increases the
degree of suspicion presented by such flight, because it suggests that the
fleeing suspect is avoiding police because he or she was engaging in, or had
been engaging in, criminal behavior.



                                            - 10 -
J-S13008-15



      However, several factors lead us to conclude that the police possessed

reasonable suspicion to believe that Appellant was engaged in criminal

activity prior to the seizure that occurred. First, Officer Goss testified that

his encounter with Appellant occurred in a high crime area. Appellant does

not dispute this factor, other than to note that his presence in a high crime

area, by itself, is not enough to give rise to a reasonable suspicion that

criminal activity is afoot. Appellant is correct in this regard. “An individual's

presence in an area of expected criminal activity, standing alone, is not

enough to support a reasonable, particularized suspicion that the person is

committing a crime.” In re M.D., 781 A.2d 192, 199 (Pa. Super. 2001)

(citing Brown v. Texas, 443 U.S. 47 (1979)). Nevertheless, “the fact that

the stop occurred in a ‘high crime area’ [is] among the relevant contextual

considerations in a Terry analysis.” Id.

      Second, we also consider Appellant’s suspicious behavior as a

circumstance contributing to Officer Goss’ suspicion of his criminal activity.

According to Officer Goss, when he drove past Appellant and his companion,

Appellant, using both hands, reached toward his waistband.         Officer Goss

recognized this behavior as being consistent with an attempt to conceal a

firearm. Moreover, this was done while Appellant gave a nervous look to the

officer.    We agree with Appellant that by itself, this nervous, secretive

behavior did not demonstrate that Appellant was engaged in criminal

behavior.     However, there is no doubt that such behavior has been

previously relied upon by the courts, among other factors, to provide a basis

                                     - 11 -
J-S13008-15



for a finding of reasonable suspicion. See Commonwealth v. Foglia, 979

A.2d 357, 361 (Pa. Super. 2009) (“Since the criminal activity in question

involved possession of a firearm and since [the a]ppellant's act of patting his

waistband bolstered [the police officer’s] reasonable belief that [the

a]ppellant actually had a gun in his pants, [the officer] was constitutionally

permitted to conduct a patdown search of Appellant's waistband.”)

      Third,   we    consider   Officer   Goss’   specific   knowledge   regarding

Appellant, which the officer developed during their prior encounter; Officer

Goss knew Appellant possessed a firearm during that prior encounter. Like

the previous two factors, this was not enough, considered in isolation, to

constitute reasonable suspicion that Appellant was engaged in criminal

activity.   However, this circumstance is the keystone of the arch of

reasonable suspicion that can be constructed in this case.          It is because

Officer Goss knew of Appellant’s prior illegal possession of firearms that his

observation of Appellant’s nervous, secretive behavior in a high crime area

gave rise to more than just a hunch of ongoing criminal activity.

      Collectively, these factors allowed Officer Goss to reasonably suspect

that Appellant was engaged in a specific criminal behavior – the illegal

possession, or secretion, of a firearm. Appellant, known to Officer Goss to

have illegally possessed a firearm in the past, and in reaction to the

presence of police, engaged in nervous behavior that was consistent with the

secretion of a firearm in his waistband while walking through a high crime

neighborhood.       We conclude that, in these circumstances, Officer Goss

                                      - 12 -
J-S13008-15



possessed a reasonable suspicion that Appellant was engaged in criminal

activity. We do so based on the attendant circumstances and Officer Goss’

particularized observations at the time he effectuated the aforementioned

investigative   detention,   although   no    single   factor   or   circumstance,

considered alone, could have justified a Terry stop.                 Consequently,

although we conclude that the trial court erred in its legal analysis, we affirm

its decision to deny Appellant’s motion to suppress the seized firearm.

“[E]ven if the suppression court did err in its legal conclusions, the reviewing

court may nevertheless affirm its decision where there are other legitimate

grounds for admissibility of the challenged evidence.” Commonwealth v.

Dixon, 997 A.2d 368, 373 (Pa. Super. 2010) (quoting Commonwealth v.

Wilson, 927 A.2d 279, 284 (Pa. Super. 2007)).            Accordingly, Appellant’s

first claim lacks merit.

      Next, Appellant posits that the trial court abused its discretion in

sentencing him to 30-60 months’ incarceration.

            Challenges to the discretionary aspects of sentencing do
      not entitle an appellant to review as of right. Commonwealth
      v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court's jurisdiction by satisfying a four-part test:

         [W]e conduct a four-part analysis to determine: (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).

                                     - 13 -
J-S13008-15


         Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
         2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
         (internal citations omitted).   Objections to the discretionary
         aspects of a sentence are generally waived if they are not raised
         at the sentencing hearing or in a motion to modify the sentence
         imposed.     Commonwealth v. Mann, 820 A.2d 788, 794
         (Pa.Super.2003), appeal denied, 574 Pa. 759, 831 A.2d 599
         (2003).

               The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis.
         Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
         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.” Sierra, supra at 912-
         13.

               As to what constitutes a substantial question, this Court
         does not accept bald assertions of sentencing errors.
         Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
         2006). An appellant must articulate the reasons the sentencing
         court's actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

         In the present case, Appellant filed a timely notice of appeal,

preserved his claim in a post-sentence motion, and provided this Court with

a Rule 2119(f) statement alleging the presence of a substantial question for

our review.     Furthermore, we conclude that Appellant presents a plausible

argument that a substantial question exists. Specifically, he alleges that his

sentence was manifestly excessive in light of the fact that the trial court

failed    to   consider   his   rehabilitative   needs.   As   conceded   by   the

Commonwealth, this claim presents a substantial question for our review.

See Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)



                                        - 14 -
J-S13008-15



(holding that the defendant’s assertion that the trial court failed to consider

his rehabilitative needs at sentencing raised a substantial question).      As

such, we proceed to consider the merits of Appellant’s discretionary aspects

of sentencing claim.

       Appellant contends that the trial court’s sentence was manifestly

excessive, despite falling both within the statutory limits and inside the

standard range of the sentencing guidelines, because the trial court failed to

consider his rehabilitative needs. Specifically, he argues that his young age,

troubled youth, non-violent criminal history, and status as a new parent

should have provided for a more lenient sentence than the one imposed.

Furthermore, Appellant contends that the trial court erred when it refused to

consider the fact that Appellant had not used the seized firearm in any other

criminal endeavor.6

       In reviewing Appellant’s sentencing claim(s), we adhere to the

following standard of review:

       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.
____________________________________________


6
  This latter contention arguably fails to present a substantial question for
our review because the trial court’s refusal “to weigh the proposed
mitigating factors as Appellant wished, absent more, does not raise a
substantial question.” Commownealth v. Moury, 992 A.2d 162, 175 (Pa.
Super. 2010). However, we review this claim because it also plausibly
relates to Appellant’s broader allegation that the court failed to consider his
rehabilitative needs as one factor among many.



                                          - 15 -
J-S13008-15


     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. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)

(quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.

2006)). We are also guided by statutory considerations:

     (c) Determination on appeal.--The appellate court shall
     vacate the sentence and remand the case to the sentencing
     court with instructions if it finds:

        (1) the sentencing court purported to sentence within the
        sentencing   guidelines   but   applied  the   guidelines
        erroneously;

        (2) the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application   of  the    guidelines   would  be   clearly
        unreasonable; or

        (3) the sentencing court sentenced outside the sentencing
        guidelines and the sentence is unreasonable.

        In all other cases the appellate court shall affirm the
        sentence imposed by the sentencing court.

     (d) Review of record.--In reviewing the record the appellate
     court shall 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(c) and (d).




                                  - 16 -
J-S13008-15



      The trial court defends the sentence imposed, noting that it “had the

benefit of a thorough presentence report and listened carefully to the

statements of [Appellant] and the mother of [Appellant]’s son prior to

sentencing [Appellant].” TCO, at 10. Thus, we reject Appellant’s claim that

the trial court failed to consider his age, personal history, and criminal

history in crafting his sentence. See Commonwealth v. Boyer, 856 A.2d

149, 154 (Pa. Super. 2004), aff'd, 891 A.2d 1265 (Pa. 2006) (“[W]here the

sentencing judge had the benefit of a presentence investigation report, it will

be presumed that he or she was aware of the relevant information regarding

the defendant's character and weighed those considerations along with

mitigating statutory factors.”). Furthermore, despite his nonviolent criminal

history, the court considered that Appellant pled guilty to the exact same

offense just six months prior to the charges filed in this case, and had

committed the instant offense just two months after being released from

prison for that prior offense. The court also considered “the serious nature

of the crime[] and [Appellant’s] lack of remorse….” TCO, at 11. While this

Court may have weighed these circumstances differently, we cannot discern

any abuse of discretion in the trial court’s consideration of these factors.

Specifically, we ascertain no evidence of “partiality, prejudice, bias or ill will”

in the trial court’s imposition of sentence, nor does the court’s weighing of

factors represent a “manifestly unreasonable decision.” Hoch, 936 A.2d at

518 (emphasis added).




                                      - 17 -
J-S13008-15



       Appellant also complains that the trial court erred when it declined to

consider the fact that he did not commit any other crime with the firearm as

a mitigating factor in this case.         Although we are inclined to agree with

Appellant that this is a mitigating factor, it is not a particularly substantial

one.    It is only nominally mitigating because Appellant is in a class of

defendants     whose     convictions     under     18   Pa.C.S.   §   6106    are   often

accompanied by other crimes involving the use, or the threat to use, the

firearm that provided the basis for the possessory offense.                  If, in those

cases, the use of the firearm is logically considered as an aggravating

sentencing factor, then certainly the opposite condition or circumstance

should be considered, at least to some extent, as a mitigating factor.

Nevertheless, to afford Appellant significant credit for not committing

additional crimes with his firearm is an absurdity in and of itself.                Thus,

although we acknowledge that the court likely erred in this regard, we do

not conclude that such error rendered the sentence imposed manifestly

unreasonable.7 At worst, the court’s refusal to acknowledge the mitigating

nature of that fact was “merely … an error in judgment.” Hoch, 936 A.2d at

517–18.
____________________________________________


7
  Neither Appellant, the Commonwealth, nor the trial court has provided any
legal support regarding whether the failure to use a weapon in another crime
is a mitigating factor for a possessory offense related to that same weapon.
However, because we conclude that Appellant’s discretionary aspects of
sentencing claim does not turn on that legal question, we decline to
expressly rule on it at this time.



                                          - 18 -
J-S13008-15



      Finally, Appellant was sentenced in the standard range of the

sentencing guidelines. Thus, this Court can only vacate his sentence if the

guidelines were applied erroneously or that application of the guidelines was

“clearly unreasonable.” 42 Pa.C.S. § 9781(c)(1) and (2). Appellant makes

no argument that the guidelines were erroneously applied or that application

of the guidelines in this case was clearly unreasonable.   Consequently, for

this and all of the aforementioned reasons, we conclude that the trial court

did not abuse its discretion in sentencing Appellant to 30-60 months’

incarceration for his offense.

      Judgment of sentence affirmed.

      Judge Mundy joins the memorandum.

      Judge Stabile files a concurring memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




                                   - 19 -
J-S13008-15




              - 20 -
