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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FREDERICK MOORE                            :
                                               :
                       Appellant               :   No. 1192 EDA 2018

              Appeal from the Judgment of Sentence April 4, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0001177-2017

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED MAY 21, 2019

       Frederick Moore (Appellant) appeals from the judgment of sentence

imposed after he was convicted of firearms not to be carried without a license,

carrying firearms on public streets in Philadelphia, and persons not to possess

a firearm.1 We affirm.

       On the night of January 4, 2017, Officer Daniel Loesch (Officer Loesch)

of the Philadelphia Police Department was investigating open air drug sales

near 31st and Diamond Streets, a high-crime and drug area. Officer Loesch

was accompanied by Officers Fitzgerald and McCann.            The officers were

members of the 22nd Police District’s Drug Enforcement Team. Officer Loesch

and the other officers were in an unmarked police car and wearing plain




____________________________________________


1   18 Pa.C.S.A. §§ 6106(a)(1), 6108, 6105(a)(1).
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clothes. Officer Fitzgerald was wearing an official police vest that identified

him as a police officer.

      At around 10:30 p.m. that night, Officer Loesch observed Appellant and

another male walking toward the police vehicle. As he watched Appellant,

Officer Loesch observed Appellant adjust his waistband and grab an object in

his front waistband that Officer Loesch believed, based on his training and

experience, to be a gun. As Appellant and the other male continued walking

toward Officer Loesch’s vehicle, Appellant said something inaudible to the

other male and immediately turned around and began walking in the opposite

direction away from the officers.

      Without activating their lights and sirens, the officers began driving

slowly toward Appellant and the other male. When the police vehicle reached

Appellant, Officer Loesch, who was sitting in the front passenger seat, and

Officer Fitzgerald, who was sitting directly behind Officer Loesch, put their

windows down. At this time, Officer Loesch observed Appellant once again

grab and adjust his waistband.      Officer Loesch stated that Appellant was

grabbing at a hard object in his waistband that he said looked like a handle.

As soon as the officers put their windows down, Appellant fled down a nearby

alley. Prior to Appellant’s flight, the officers did not have an opportunity to

say anything to Appellant or verbally identify themselves as police officers.

       Officer Loesch exited the police vehicle and pursued Appellant on foot.

During the pursuit, Officer Loesch saw Appellant attempt to get rid of


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something followed by the sound of a thump on the ground.                   After

apprehending Appellant, Officer Loesch recovered a loaded revolver near

where he had observed Appellant attempting to discard an object and heard

the thump.

     Appellant was arrested and charged with firearms not to be carried

without a license, carrying firearms on public streets in Philadelphia, and

persons not to possess a firearm. On February 23, 2017, Appellant filed a

motion to suppress on the basis that police chased and apprehended him

without reasonable suspicion to do so. On October 17, 2017, the trial court

held a hearing on Appellant’s suppression motion, after which the court denied

the motion.

     The trial court summarized the procedural history that followed:

        On January 9, 2018, Appellant appeared before this [c]ourt for
     a jury trial at the conclusion of which the jury found Appellant
     guilty of the crimes of Firearms not to be Carried without a
     License, 18 Pa.C.S. § 6106, and Carrying Firearms on a Public
     Street, 18 Pa.C.S. § 6108. After the jury rendered its verdict, this
     [c]ourt conducted a waiver trial on a charge of Possession of
     Firearm by a Prohibited Person, 18 Pa.C.S. § 6105, and found
     Appellant guilty.

                                *     *     *

        On April 4, 2018, this [c]ourt imposed consecutive sentences
     of five to ten years[] and one to five years[ of] incarceration on
     the Possession of Firearm by a Prohibited Person and Carrying
     Firearms on a Public Street convictions as well as a concurrent
     term of probation of five years on the Firearms not to be Carried
     without a License conviction. On April 16, 2014, Appellant filed a
     post-sentence motion, which this Court denied on April 18, 2018.




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         Appellant filed a notice of appeal following the denial of his
      post-sentence motion. Appellant thereafter filed a counseled
      court-ordered Pa.R.A.P. 1925(b) Statement of Matters to be
      raised on Appeal.

Trial Court Opinion, 9/19/18, at 1-2.

      On appeal, Appellant presents the following issues for review:

      1.    Did not the court err by denying Appellant’s motion to
      suppress physical evidence, to wit, the gun he was forced to
      abandon when officers began chasing Appellant after he adjusted
      his waistband?

      2.    Did not the court err and abuse its discretion by denying
      Appellant’s motion for a new trial, where the verdict as to the
      weapons charges w[as] so contrary to the weight of the evidence
      as to shock one’s sense of justice?

      3.    Did not the court err and abuse its discretion by imposing
      on Appellant a manifestly excessive and unreasonable sentence of
      6 to 15 years[ of] imprisonment followed by 5 years[ of] probation
      without articulating the grounds for such a sentence?

Appellant’s Brief at 5.

      For his first issue, Appellant challenges the trial court’s denial of his

suppression motion. Our standard of review is as follows:

      [An appellate court’s] 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, [the appellate court] is bound by [those]
      findings and may reverse only if the court’s legal conclusions are
      erroneous. Where . . . 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

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       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 [ ] plenary review.

Commonwealth v. Mason, 130 A.3d 148, 151-52 (Pa. Super. 2015)

(quotations and citations omitted). Importantly, our scope of review from a

suppression ruling is limited to the evidentiary record that was created at the

suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

       “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania    Constitution    protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). “To secure the right of citizens to be free from

such   [unreasonable]      intrusions,   courts   in    Pennsylvania   require    law

enforcement officers to demonstrate ascending levels of suspicion to justify

their interactions with citizens as those interactions become more intrusive.”

Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in

this Commonwealth have recognized three types of interactions between the

police and a citizen:     a mere encounter, an investigative detention, and a

custodial detention.

       A mere encounter between police and a citizen need not be
       supported by any level of suspicion, and carr[ies] no official
       compulsion on the part of the citizen to stop or to respond. An
       investigatory stop, which subjects a suspect to a stop and a period
       of detention . . . requires a reasonable suspicion that criminal
       activity is afoot. A custodial search is an arrest and must be
       supported by probable cause.

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).


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      This Court has explained that when determining whether an interaction

is a mere encounter or an investigative detention:

      the focus of our inquiry is on whether a seizure of the person has
      occurred. Within this context, our courts employ the following
      objective standard to discern whether a person has been seized:
      [w]hether, under all the circumstances surrounding the incident
      at issue, a reasonable person would believe he was free to leave.
      Thus, a seizure does not occur simply because a police officer
      approaches an individual and asks a few questions.

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (citations,

quotation marks, and ellipses omitted).        “We observe that well-settled

Pennsylvania precedent establishes that a police officer’s pursuit of a fleeing

suspect constitutes a seizure.” Commonwealth v. Taggart, 997 A.2d 1189,

1192 (Pa. Super. 2010) (citing Commonwealth v. Cook, 735 A.2d 673, 675

(Pa. 1999); Commonwealth v. Matos, 672 A.2d 769, 775-76 (Pa. 1996)).

Accordingly, we must determine whether Officer Loesch’s pursuit and

subsequent apprehension of Appellant was supported by reasonable suspicion.

See Newsome, 170 A.3d at 1154.

      When evaluating the legality of investigative detentions, Pennsylvania

has adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), where the

United States Supreme Court held that police may conduct an investigatory

detention if they have reasonable suspicion that criminal activity is afoot. In

re: D.M., 781 A.2d 1161, 1163 (Pa. 2001).        In order to prove reasonable

suspicion, “the police officer must be able to point to specific and articulable

facts and reasonable inferences drawn from those facts in light of the officer’s


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experience.”   Cook, 735 A.2d at 677.       “The determination of whether an

officer had reasonable suspicion that criminality was afoot so as to justify an

investigatory detention is an objective one, which must be considered in light

of the totality of the circumstances.” Commonwealth v. Walls, 53 A.3d 889,

893 (Pa. Super. 2012).

      The trial court, in concluding that the police had reasonable suspicion to

pursue and detain Appellant, explained:

      Here, it is clear that Appellant was subject to a mere encounter
      and that he fled of his own volition and not because of anything
      the police did. During the suppression hearing, Officer Loesch
      testified, as he did during Appellant’s trial, that he and the other
      officers were investigating drug activity while inside an unmarked
      police car when he saw Appellant: 1.) make an adjustment in his
      waist band area to an object the officer believed to be a gun; 2.)
      suddenly turn around and walk in the opposite direction away from
      the officers; 3.) make two more adjustments, and; 4.) then flee
      from the officers, who, other than slowly following Appellant as he
      walked away from them, did nothing to convey to Appellant that
      he was not free to leave.

Trial Court Opinion, 9/19/18, at 7.

      Appellant argues that no mere encounter took place because he fled

prior to the police officers having an opportunity to say anything to him.

Additionally, Appellant asserts that the police officers did not have reasonable

suspicion to pursue and detain him because he was unaware that he was

fleeing from police. Appellant maintains that an individual must be aware he

or she is fleeing from the police in order for flight to create reasonable

suspicion.




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      It is well-settled that “unprovoked flight in a high crime area

establish[es] a reasonable suspicion to believe that criminal activity is afoot

to allow for a Terry stop.” Commonwealth v. Brown, 904 A.2d 925, 930

(Pa. Super. 2006). As this Court indicated, however, in Commonwealth v.

Washington, 51 A.3d 895 (Pa. Super. 2012):

      [T]he United States Supreme Court speaks of unprovoked flight
      upon noticing the police in a high crime area. Additional language
      [in Supreme Court opinions] also supports the conclusion that the
      suspect must know he is running from law enforcement before a
      reasonable suspicion can attach. . . . [N]ervous, evasive behavior
      and headlong flight all provoke suspicion of criminal behavior in
      the context of response to police presence.

Id. at 898 (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)).          In

Washington, this Court concluded that the defendant’s unprovoked flight in

a high-crime area did not justify an investigative detention because there was

no evidence he was aware that he fled from the police, as the defendant fled

before police officers arrived at the scene. Id. at 899.

      Thus, while we agree with Appellant that a person must know that he

or she is running from the police before flight in a high-crime area can raise

reasonable suspicion, we nevertheless conclude that the record supports the

suppression court’s determination that Appellant was aware he was fleeing

from police in this instance. While Officers Loesch, Fitzgerald, and McCann

were investigating drug sales near 31st and Diamond Streets in Philadelphia,

a well-known high-crime and drug area, Officer Loesch observed Appellant,

numerous times, adjust his waistband and grab an object in his front


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waistband. N.T., 10/17/17, at 8-13, 23. Officer Loesch, based on his training

and experience, believed this object was a gun. Id. at 13. As the officers’

vehicle slowly approached Appellant on the side of street, Officer Loesch

noticed that Appellant continued grabbing and adjusting his waistband and

observed what looked like a “handle” protruding from Appellant’s pants. Id.

at 14-15, 18.   When the vehicle stopped alongside Appellant, and Officer

Loesch and Officer Fitzgerald (who was wearing police vest) put their windows

down, Appellant immediately fled. Id. at 15. Although the officers were in

an unmarked car and in plain clothes, Appellant’s sudden and immediate flight

upon the officers putting their windows down leads to the reasonable inference

that Appellant saw Officer Fitzgerald in a police vest and was aware that he

was fleeing from police officers.     See id. at 13-18.     This case is thus

distinguishable from Washington.

      The record reflects that Officer Loesch observed Appellant:      (1) in a

high-crime, high drug area; (2) repeatedly grabbing at and adjusting an object

in his waistband that the officer, based on his training and experience,

believed to be a firearm; and (3) flee upon realizing that the officers appeared

that they were about to speak to him. We therefore conclude that Appellant

knowingly fled from the police in a high-crime area and consequently, the

police officers possessed the reasonable suspicion necessary to pursue and

detain Appellant. See Brown, 904 A.2d at 930. Accordingly, the trial court

did not abuse its discretion in denying Appellant’s suppression motion.


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

denying his motion for a new trial on the basis that the verdicts were against

the weight of the evidence. Appellant claims there was a “total absence of

any corroborating evidence that the firearm recovered from the alleyway had

ever been in Appellant’s possession[,]” other than Officer Loesch’s testimony.

Appellant’s Brief at 24.

      Our standard of review for a claim that the verdict was against the

weight of the evidence is as follows:

         A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, [] 744 A.2d 745,
      751-52 ([Pa.] 2000); [Commonwealth v. Brown, 648 A.2d
      1177, 1189 (Pa. 1994)]. A new trial should not be granted
      because of a mere conflict in the testimony or because the judge
      on the same facts would have arrived at a different conclusion.
      Widmer, 744 A.2d at 752. Rather, “the role of the trial judge is
      to determine that ‘notwithstanding all the facts, certain facts are
      so clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.’” [Id.] (citation
      omitted). It has often been stated that “a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.” Brown, 648 A.2d at 1189.

        An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

            Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Brown, 648 A.2d at 1189. Because the trial judge has had
         the opportunity to hear and see the evidence presented, an
         appellate court will give the gravest consideration to the
         findings and reasons advanced by the trial judge when

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         reviewing a trial court’s determination that the verdict is
         against the weight of the evidence. Commonwealth v.
         Farquharson, 354 A.2d 545 (Pa. 1976). One of the least
         assailable reasons for granting or denying a new trial is the
         lower court’s conviction that the verdict was or was not
         against the weight of the evidence and that a new trial
         should be granted in the interest of justice.

      Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

      Instantly, the record reflects that Officer Loesch and the other officers

approached Appellant and his companion because Office Loesch observed

Appellant grab at and adjust an object in Appellant’s waistband that Officer

Loesch believed was a gun. N.T., 1/10/18, 21-22, 29, 31-32. At trial, Officer

Loesch testified that as the officers’ vehicle approached Appellant, he could

see the outline of the butt of a gun in Appellant’s pants. Id. at 43. Officer

Loesch testified that Appellant then fled while holding the handle of the gun

in his waistband. Id. at 40. While pursuing Appellant, Officer Loesch saw

Appellant trying to discard the gun and then heard a thump, which the officer

believed to be the gun hitting the ground. Id. at 40-47. After the officers

apprehended Appellant, Officer Loesch recovered the firearm from the location

where he heard the loud thump. Id. at 50-56.

      Both the jury and the trial court, in finding Appellant guilty of multiple

firearms violations, credited Officer Loesch’s testimony. Although there was

no evidence, other than Officer Loesch’s testimony, indicating that the firearm

Officer Loesch recovered belonged to Appellant, Officer Fitzgerald’s testimony


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corroborated Officer’s Loesch version of the events in almost every respect.

See id. at 114-35.     The jury and the trial court, as the factfinders, were

entitled to credit Officer Loesch’s testimony. Their decision to credit Officer

Loesch’s testimony does not shock one’s sense of justice. Accordingly, we

conclude that the trial court did not abuse its discretion in finding that the

verdicts were not against the weight of the evidence.

      Finally, Appellant argues that the trial court did not consider the

appropriate factors in determining Appellant’s sentence. This issue challenges

the discretionary aspects of Appellant’s sentence.

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents 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.”

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Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)

(quotations and citations omitted).

      Here, Appellant preserved his discretionary aspects of sentencing claim

by raising it in a post-sentence motion. See Post-Sentence Motion, 4/16/18,

¶ 6. Appellant also filed a timely notice of appeal and included in his appellate

brief a concise statement of the reasons relied upon for the allowance of his

appeal pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). See

Appellant’s Brief at 15-16.   Thus, we must determine whether Appellant’s

discretionary aspects of sentencing claim raises a substantial question for our

review.

      Appellant argues that his sentence was excessive because the trial court

did not take into consideration the appropriate factors in determining his

sentence. Specifically, Appellant contends that the trial court did not consider

the appropriate sentencing factors of 42 Pa.C.S.A. § 9721(b).        Appellant’s

Brief at 16. Appellant maintains “it is clear that the court gave absolutely no

meaningful consideration to the proper criteria, specifically Appellant’s

character, background, and rehabilitative needs.”       Id. at 30.    This claim

presents a substantial question. See Commonwealth v. Derry, 150 A.3d

987, 992 (Pa. Super. 2016) (“An averment that the trial court failed to

consider relevant sentencing criteria, including the protection of the public,

the gravity of the underlying offense and the rehabilitative needs of Appellant,

as 42 PA.C.S.[ ] § 9721(b) requires[,] presents a substantial question for our


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review in typical cases.”). Accordingly, we turn to the merits of Appellant’s

sentencing claim.

      Our standard of review for discretionary aspects of sentencing claims is

as follows:

      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.

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

2006)).

      Section 9721(b) of the Sentencing Code sets forth general sentencing

standards for trial courts and provides, in pertinent part:

         (b) General standards.—. . . the court shall follow the
      general principle that the sentence imposed should call for
      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. . . . In every case in which the court imposes a
      sentence for a felony or misdemeanor, modifies a sentence,
      resentences an offender following revocation of probation, county
      intermediate punishment or State intermediate punishment or
      resentences following remand, the court shall make as a part of
      the record, and disclose in open court at the time of sentencing,
      a statement of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

      In rejecting Appellant’s sentencing claim, the trial court explained:

      [T]he aggregate sentence imposed on the gun charges was not
      unreasonable and did not constitute an abuse of discretion

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     because all of the factors . . . were considered by this Court, along
     with the applicable law, when it fashioned the sentence it imposed
     on Appellant. This Court carefully considered the information in
     the pre-sentence reports, which showed that Appellant had a long
     history of criminal conduct which, in this Court’s view, rendered
     him a danger to the community. It is noted that, “where the
     sentencing court imposed a standard-range sentence with the
     benefit of a pre-sentence report, [an appellate court] will not
     consider the sentence excessive.” Commonwealth v. Corley,
     31 A.3d 293, 298 (Pa. Super. 2011) (citing Commonwealth v.
     Moury, 992 A.2d 162, 171 (Pa. Super. 2010). Moreover, the
     record herein is full of reasons why this Court sentenced Appellant
     as it did, including Appellant’s possession of a firearm while
     prohibited from doing so, his vast criminal record, his flight from
     police, and his dangerous propensities, all of which are aptly
     demonstrated by the record herein. The law provides that “[a]
     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 pre-sentencing report; thus
     properly considering and weighing all relevant factors.”
     Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
     2009) (quoting Commonwealth v. Fowler, 893 A.2d 758, 766-
     67 (Pa. Super. 2006)).

Trial Court Opinion, 9/19/18, at 12-13.

     Upon review, we agree with the trial court’s disposition of this issue,

including its reliance on our Corley and Ventura decisions.         The record

reflects that the trial court had the benefit of a pre-sentence investigation

report and acknowledged reviewing it. N.T., 4/4/18, at 14. As the trial court

rightfully noted, “where the sentencing court imposed a standard-range

sentence with the benefit of a pre-sentence report, we will not consider the

sentence excessive.”      Corley, 31 A.3d at 298.     Additionally, “[i]n those

circumstances, we can assume the sentencing court was aware of relevant

information   regarding    the   defendant’s   character   and   weighed     those


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considerations along with mitigating statutory factors.” Id. (quotations and

citations omitted). Therefore, there is no support for Appellant’s claim that

his sentence was excessive and that the trial court did not take into

consideration the appropriate factors in sentencing him.             Accordingly,

Appellant’ discretionary aspects of sentencing claim is meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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