J-S41025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFREY WILLIAM DENNIS                     :
                                               :
                       Appellant               :   No. 2077 EDA 2017

             Appeal from the Judgment of Sentence June 12, 2017
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0007466-2016


BEFORE:       GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                           FILED SEPTEMBER 17, 2018

       Appellant, Jeffrey William Dennis, appeals from the judgment of

sentence following his jury trial convictions for possession with intent to

deliver (PWID) cocaine and possession with intent to deliver a non-controlled

substance that substantially resembles a controlled substance (PWID (non-

controlled substance)).1 Upon review, we affirm.

       The trial court summarized the facts and procedural history of this case

as follows:

       A confidential informant told the Warrington Township Police
       Department that a man named “Jeff” sold cocaine “in weight,”
       meaning in large quantities. The confidential informant described
       Jeff as a white male, thin, brown hair, tattoos, with a Fu Manchu
       goatee, driving a red sporty vehicle normally parked at
       Harrington’s Pub in the Rosemore Shopping Center, Warminster
       Township, Bucks County, where Jeff was employed as a cook. The
       confidential informant made an in-court identification of Appellant
____________________________________________


1   35 P.S. §§ 780-113(a)(30) and 780-113(a)(35), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41025-18


     as “Jeff.” The most recent photograph of Appellant from the
     Pennsylvania Department of Transportation, and a photograph
     from Appellant’s Facebook profile were used to identify Appellant.

     [Sergeant Kevin] Stebner [(Sgt. Stebner)] confirmed that a red
     Chrysler 200 was parked behind Harrington’s Pub, with license
     plate number JRC-[xxxx]. The vehicle was registered to Joseph
     Schwab and Jean Marie Lamonica. A review of Pennsylvania
     Department of Transportation records revealed Appellant shared
     the same address as the registrants of the red Chrysler 200. Sgt.
     Stebner ascertained, through an investigation, [that] Appellant
     operated the red Chrysler 200 parked behind Harrington’s Pub.

     On November 14, 2015, the confidential informant met with
     Officer [Charles] Krysick of the Warrington Township Police
     Department to coordinate a “controlled buy.” The confidential
     informant called Appellant to meet at Harrington’s Pub and
     purchase ¼ ounce of cocaine. The confidential informant and
     Officer Krysick drove to Harrington’s Pub and Appellant gave the
     confidential informant, in the presence of Office[r] Krysick, ¼
     ounce of cocaine in exchange of $330[.00]. On November 18,
     2015, the confidential informant and Officer Krysick drove to
     Harrington’s Pub for a second transaction exchanging ¼ ounce of
     cocaine from Appellant for $300[.00]. The baggies delivered by
     Appellant on November 14, 2015, tested positive for cocaine. The
     baggies delivered on November 18, 2015, tested positive for
     lidocaine. After the second transaction[,] Appellant called the
     confidential informant inquiring whether Officer Krysick was a
     police officer.

     Sgt. Stebner observed the November 14, 2015, and November
     18, 2015, controlled buys. Sgt. Stebner’s view, however, was
     imperfect due to poor lighting on November 14, 2015 and
     obstructions on November 18, 2015.

                         *           *           *

     Appellant was arrested by the Warrington Township Police
     Department and was charged with two (2) counts of criminal use
     of a communication facility, one (1) count of [PWID] to[-]wit
     [cocaine], and one count of [PWID (non-controlled substance)].
     On April 5, 2017, Appellant was found guilty of PWID and [PWID
     (non-controlled substance)]. On June 12, 2017, Appellant was
     sentenced to not less than four (4) years and not more than ten

                                   -2-
J-S41025-18


       (10) years for PWID, and five (5) years’ consecutive probation, for
       [PWID (non-controlled substance)].

Trial Court Opinion, 1/19/2018, at 1-3 (record citations and footnotes

omitted). This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

       A. Did the trial court commit prejudicial and reversible error of law
          and fact in denying Appellant’s motion to dismiss for lack of
          jurisdiction as the alleged crime occurred outside of Bucks
          County?

       B. Did the trial court commit prejudicial and reversible error of law
          and fact in denying Appellant’s motion to suppress
          identification evidence due to insufficient prior contacts, lack of
          opportunity      to   observe,    unreliable     evidence,     and
          unconstitutional “fruit” of the uncounseled and unnecessarily
          suggestive photographic line-up and other identification
          procedures in violation of [Appellant’s] rights under the United


____________________________________________


2   On June 22, 2017, Appellant, through counsel, filed a motion for
post-sentence relief. On June 26, 2017, Appellant, pro se, filed a notice of
appeal. On July 6, 2017, the trial court scheduled a hearing for July 25, 2017.
The trial court did not receive Appellant’s notice of appeal until July 10, 2017.
On July 12, 2017, the trial court cancelled the hearing previously scheduled,
and denied Appellant’s motion for post-sentence relief. We treat the notice of
appeal as filed on the same day as the denial of post-sentence relief. See
Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”). On July 12, 2017, the trial
court ordered Appellant to file a concise statement of errors complained of on
appeal. On August 3, 2017, the trial court permitted defense counsel to
withdraw and appointed the Public Defender to represent Appellant on appeal.
On August 29, 2017, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a), finding all of Appellant’s issues waived for failing to file a Rule
1925(b) concise statement. Upon application to this Court, we remanded the
matter to the trial court to allow Appellant to file a Rule 1925(b) concise
statement. Thereafter, Appellant complied with our directives and the trial
court subsequently issued a supplemental opinion pursuant to Pa.R.A.P.
1925(a) on January 19, 2018.

                                           -3-
J-S41025-18


         States Constitution and the enhanced protections under the
         Pennsylvania Constitution?

      C. Is the verdict based upon insufficient evidence where the
         alleged identification was based upon a corrupt source, tainted
         identifications, inadmissible hearsay, evidence of a broken
         chain of custody, and unlinked, circumstantial evidence?

      D. Did the trial court abuse its discretion in imposing an excessive
         sentence in sentencing Appellant outside the sentencing
         guidelines based upon unsubstantiated evidence, unproven
         aggravators, disregarding mitigating evidence, relying on a
         weight issue that was never presented to the jury, and
         elevating the gravity score based upon [a] controlled substance
         with a broken chain of custody?

Appellant’s Brief at 5-6 (complete capitalization omitted).

      In his first issue presented, Appellant claims that the trial court erred by

denying his motion to dismiss for lack of jurisdiction when he alleged that the

crime occurred outside of Bucks County and in Montgomery County, instead.

Id. at 12-13. In sum, Appellant contends:

      The trial court’s opinion states merely because the Warminster
      Township Police Department [was] investigating and ultimately
      made an arrest that action precludes any claim that Bucks County
      lacked jurisdiction. The Commonwealth alleged without any
      authenticated documentation to [its] position that the location of
      the transaction was on the Bucks County side of the Montgomery
      County/Bucks County border.           On cross-examination, the
      [Commonwealth] witnesses were impeached by the address and
      location of Pine Grove Memorial Cemetery, The Pub, and
      Rosemont Shopping Center, all of which state they are in Hatboro,
      Montgomery County. The [investigating] officer[] responde[d]
      that he was unaware whether it was a straight or curved [county
      border] line or even a squiggly line, he is not a cartographer. […]
      The evidentiary record at best reveals inconsistent testimony by
      a witness who admitted that the boundary line was not straight
      and he lacked the qualifications of a cartographer to determine
      whether the boundary lines for each jurisdiction laid [sic]. As
      such, the Commonwealth failed to establish the necessary


                                      -4-
J-S41025-18


      jurisdiction and Bucks County Court of Common Pleas lacked
      jurisdiction for this case.

Id.

      Our Supreme Court has determined:

      Jurisdiction relates to the court's power to hear and decide the
      controversy presented. All courts of common pleas have
      statewide subject matter jurisdiction in cases arising under
      the Crimes Code. […]Venue, on the other hand, refers to the
      convenience and locality of trial, or the right of a party to have
      the controversy brought and heard in a particular judicial district.
      Venue assumes jurisdiction exists and it can only be proper
      where jurisdiction already exists. Even though all common pleas
      courts may have jurisdiction to resolve a case, such should only
      be exercised in the judicial district in which venue lies. Venue in
      a criminal action properly belongs in the place where
      the crime occurred.

      Venue challenges concerning the locality of a crime […] stem from
      the Sixth Amendment to the United States Constitution and Article
      I, § 9 of the Pennsylvania Constitution, both of which require that
      a criminal defendant stand trial in the county in which
      the crime was committed, protecting the accused from unfair
      prosecutorial forum shopping. Thus, proof of venue, or the locus
      of the crime, is inherently required in all criminal cases.

      The burden of proof in relation to venue challenges has not been
      definitively established in our decisional law or our criminal
      procedural rules. Because the Commonwealth selects the county
      of trial, we now hold it shall bear the burden of proving venue is
      proper—that is, evidence an offense occurred in the judicial
      district with which the defendant may be criminally associated,
      either directly, jointly, or vicariously. Although our sister states
      are not in agreement as to the requisite degree of proof, we find
      the Commonwealth should prove venue by a preponderance of the
      evidence once the defendant properly raises the issue. Venue
      merely concerns the judicial district in which the prosecution is to
      be conducted; it is not an essential element of the crime, nor does
      it relate to guilt or innocence. Because venue is not part of
      a crime, it need not be proven beyond a reasonable doubt as
      essential elements must be. Accordingly, applying the



                                     -5-
J-S41025-18


       preponderance-of-the-evidence               standard[3]         to
       venue challenges allows trial courts to speedily resolve this
       threshold issue without infringing on the accused's constitutional
       rights. Like essential elements of a crime, venue need not be
       proven by direct evidence but may be inferred by circumstantial
       evidence. Appellate review of venue challenges, similar to that
       applicable to other pre-trial motions, should turn on whether the
       trial court's factual findings are supported by the record and its
       conclusions of law are free of legal error.

Commonwealth v. Gross, 101 A.3d 28, 32–34 (Pa. 2014) (internal citations,

quotations,     and    original    footnotes     and   omitted).   The   factfinder

is free to believe all, part, or none of the evidence and to determine

the credibility of the witnesses. See Commonwealth v. Cousar, 928 A.2d

1025, 1036 (Pa. 2007).

       Clearly, the Court of Common Pleas of Bucks County had jurisdiction to

hear this case as our Supreme Court has made it clear that all courts of

common pleas have statewide subject matter jurisdiction in cases arising

under the Crimes Code. Commonwealth v. Gross, 101 A. 3d at 32. Thus,

to the extent Appellant argues that the Court of Common Pleas of Bucks

County lacked jurisdiction, he is mistaken. However, as it is apparent that

Appellant’s argument made to and addressed by the trial court dealt with

whether Bucks County Court of Common Pleas was the proper venue for this

case, we turn our attention to that issue.

____________________________________________


3  A preponderance of the evidence is only the greater weight of the
evidence, i.e., to tip a scale slightly is the criteria or requirement
for preponderance of the evidence. Commonwealth v. Neysmith, 2018 WL
3153691, at *5 (Pa. Super. 2018) (citation and quotations omitted). “In other
words, when weighing the evidence of record, the trial judge need only find
that the fact in question is more-likely-than-not true.” Id.

                                           -6-
J-S41025-18



     Here, at a hearing on pre-trial motions, the Commonwealth presented

the testimony of Sgt. Stebner wherein the following exchange occurred:

     The Commonwealth:       Where was the           location   for   the
                             transaction[s?]

     Sgt. Stebner:           Harrington’s Pub, which is located in
                             Rosemore Shopping Center, Warminster
                             Township, Bucks County, Pennsylvania.

     The Commonwealth:       How do you know it’s in Warminster?

     Sgt. Stebner:           In the government[,] jurisdiction of
                             Warminster it’s on the left side,
                             westbound side of County Line Road,
                             which is the jurisdictional boundary
                             between Bucks County and Montgomery
                             County.

     The Commonwealth:       How many times have you looked at a
                             map delineating where Bucks County
                             starts and Montgomery County ends?

     Sgt. Stebner:           Since I was old enough to read a map. I
                             was born and raised in Warminster.

     The Commonwealth:       And you’re positive Harrington’s Pub is on
                             the Warminster side and not the Upper
                             Moreland or Hatboro side?

     Sgt. Stebner:           100 percent.

                         *           *           *

     The Commonwealth:       If I showed you a map of the general area,
                             an aerial photo, would you be able to
                             recognize it?

     Sgt. Stebner:           Yes.

                         *           *           *



                                    -7-
J-S41025-18


      The Commonwealth:        Sergeant, I’ll show you Exhibit C-1. Do
                               you recognize what that is?

      Sgt. Stebner:            A photograph depicting the Rosemore
                               Shopping Center.

      The Commonwealth:        Is Harrington’s Pub within that shopping
                               center?

      Sgt. Stebner:            It is.

                           *             *             *

      The Commonwealth:        Do you see County Line Road anywhere
                               on this photograph?

      Sgt. Stebner:            I do.

      The Commonwealth:        Is Harr[ington’s] on the Bucks County
                               side?

      Sgt. Stebner:            It is.

N.T., 4/3/2017, at 22-25. Later, Sgt. Stebner confirmed that the Warminster

Police Department was only a couple of blocks away from Harrington’s Pub.

Id. at 73.

      In response, Appellant presented Sgt. Stebner with a letter from

Harrington’s Pub bearing a Hatboro mailing address. Id. at 29. Sgt. Stebner

admitted that Hatboro is in Montgomery County. Id. at 30.

      In resolving the issue, the trial court noted:

      [I]t’s clear to me it’s on the Bucks County side. [Sgt. Stebner]
      grew up there. In fact, […] the Warminster Police Station is a
      couple blocks away. […] So it’s clear it’s Bucks County and there’s
      no doubt in my mind that it’s on the Bucks County side of County
      Line [Road]. Why they use a Hatboro address, I suppose the
      mailing address is one thing, but its location is Warminster.



                                        -8-
J-S41025-18



Id. at 73-74.   In its Rule 1925(a) opinion, the trial court concluded that the

Commonwealth presented evidence that the entire investigation occurred

within Warminster Township in Bucks County and that venue was proper. Trial

Court Opinion, 1/19/2018, at 5.

      Based upon applicable law and our standard of review, we discern no

error in denying Appellant’s venue challenge. The Commonwealth presented

testimony from a seasoned police sergeant, familiar with the bounds of Bucks

County. According to the sergeant’s testimony, the crimes at issue took place

solely in Bucks County.    Sgt. Stebner was able to point specifically to the

location on a map delineating county lines and testified with complete

certainty that Harrington’s Pub was located in Bucks County where the entire

investigation, from start to finish, occurred.   This is simply not a case where

the Commonwealth was engaging in unfair prosecutorial forum shopping.

Accordingly, we discern no error by the trial court in determining Bucks County

was the proper venue in this criminal matter.

      In his second issue presented, Appellant argues that the trial court erred

by denying his motion to suppress identification evidence and “avers that the

in-court, preliminary hearing, and/or photographic array identifications

violated his [d]ue [p]rocess protections under the Pennsylvania Constitution.”

Appellant’s Brief at 14. The police investigation began on information from a

confidential informant’s physical description of a man named “Jeff” who

worked at Harrington’s Pub, sold narcotics, and drove a sporty, red car (often

parked behind the pub). At the suppression hearing, Sgt. Stebner testified

                                      -9-
J-S41025-18



that, prior to the controlled drug purchases, he conducted foot surveillance of

the rear of Harrington’s Pub and ran the license plate number on a red Chrysler

parked there. N.T., 4/3/2017, at 32. The car was registered to a man and

woman who did not match the description of the person described by the

confidential informant.      Id.   As such, Sgt. Stebner contacted the Abington

Police Department, where the registered owners resided, to inquire who

operated that vehicle. Id. at 32-33. The Abington Police Department advised

Sgt. Stebner that Appellant was the operator of the red Chrysler and gave him

Appellant’s date of birth. Id. Using that information, Sgt. Stebner obtained

a driver’s license photograph of Appellant, showed it to Officer Krysick and the

confidential informant, and both positively identified Appellant as the person

who sold them narcotics. Id. at 33. At the suppression hearing, counsel for

Appellant argued that such actions constituted “confirmation bias” because a

sole photo of Appellant was shown to the investigating officer and confidential

informant and they were essentially told Appellant was the person they were

seeking.4 Id. at 20.      In sum, Appellant asserts that his identification should

have been suppressed because:
____________________________________________


4  In further support of this issue, Appellant also contends that Sgt. Stebner’s
testimony regarding his conversation with an unknown person at the Abington
Police Department was “inadmissible hearsay evidence.” Appellant’s Brief at
17. Appellant did not object to the alleged hearsay or argue that it was
inadmissible in his motion to suppress.           Likewise, while he generally
challenged the sufficiency of the evidence, making reference to “inadmissible
hearsay” in his concise statement of errors complained of on appeal, Appellant
did not complain of hearsay with regard to suppression. Thus, for all of the



                                          - 10 -
J-S41025-18



       1. The officers had no prior contact with Appellant.

       2. Neither officer could see the face of the person engaged in the
          transaction.

       3. Neither officer could observe the target because of poor lighting
          and obstructions.

       4. None of the officers identified the apparent and numerous
          tattoos on his person.

       5. Neither officer did a comparative photo array to assess their
          suggestive presumption.

       6. The officers were prejudiced by the mere proximity to
          Appellant’s work.

       7. The confidential informant had no prior knowledge of Appellant,
          who was one of at least ten “Jeffs” who frequented or worked
          at the location.

Appellant’s Brief at 17.

       We review the denial of a motion to suppress 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
____________________________________________


foregoing reasons, we conclude that Appellant waived this portion of his
current argument. See Commonwealth v. Menginie, 458 A.2d 966, 970
(Pa. Super. 1983) (to preserve an issue regarding the admissibility of
evidence, an appellant must file a motion in limine or a suppression motion
and argue the specific grounds sought for suppression); see also
Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014), citing
Pa.R.A.P. 1925(b)(4)(vii) (issues not included in Rule 1925(b) statement are
waived); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).

                                          - 11 -
J-S41025-18


      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 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. McClellan, 178 A.3d 874, 880–881 (Pa. Super. 2018)

(citation omitted). “Once a motion to suppress evidence has been filed, it is

the Commonwealth's burden to prove, by a preponderance of the evidence,

that the challenged evidence was not obtained in violation of the defendant's

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. 2012).

      Here, the trial court initially determined that the identification evidence

was admissible, but Appellant could challenge its weight. Trial Court Opinion,

1/19/2018, at 9. Thereafter, the trial court concluded:

      There is no identification issue in this case. Appellant walked up
      to a car that had a police officer and confidential informant inside,
      he handed them drugs and accepted cash in exchange.

                           *           *            *

      The confidential informant and Officer Krysick viewed Appellant
      from the distance of a few feet. Appellant was readily identifiable
      from the controlled buys not the photograph presented to them
      by Sgt. Stebner.

Id. at 9-10.

      Upon review of the suppression hearing, we agree. Initially, we note

that Officer Krysick was physically present for both controlled buys. Officer

                                     - 12 -
J-S41025-18



Krysick drove the confidential informant to Harrington’s Pub and was inside

the car when both transactions took place. N.T., 4/3/2017, at 49-52. On both

occasions, Officer Krysick was in the driver’s seat, witnessed the transactions

from two feet away through the open passenger side window, and could see

Appellant’s unobstructed face.     Id.   Officer Krysick positively identified

Appellant at the hearing. Id. Moreover, Sgt. Stebner testified that he did not

show Officer Krysick a photograph of Appellant until after the first controlled

buy. Id. at 33 and 51. Based upon all of the foregoing, the facts of record

belie Appellant’s assertion that the police improperly suggested Appellant’s

identification.   Instead, the record supports the conclusion that police

physically identified Appellant selling drugs prior to seeing his photograph.

The subsequently obtained photograph merely confirmed Appellant’s name

and date of birth. Accordingly, we conclude that the Commonwealth met its

burden of proof that the evidence was legally obtained. As such, Appellant’s

second issue lacks merit.

      Appellant’s third issue is somewhat related to his second.     Appellant

claims that there was insufficient identity evidence to support his convictions

as “the Commonwealth failed to establish Appellant committed these crimes.”

Appellant’s Brief at 19.    More specifically, he contends that there was

insufficient evidence because the verdict was based upon corrupt and tainted




                                    - 13 -
J-S41025-18



identifications, inadmissible hearsay evidence, and a broken chain of custody

regarding the testing of the recovered substances.5 Id.

       Our standard of review is as follows:

       A claim challenging the sufficiency of the evidence is a question of
       law. Evidence will be deemed sufficient to support the verdict
       when it establishes each material element of the crime charged
       and the commission thereof by the accused, beyond a reasonable
       doubt. Where the evidence offered to support the verdict is in
       contradiction to the physical facts, in contravention to human
       experience and the laws of nature, then the evidence is insufficient
       as a matter of law. When reviewing a sufficiency claim, the court
       is required to view the evidence in the light most favorable to the
       verdict winner giving the prosecution the benefit of all reasonable
       inferences to be drawn from the evidence.

       Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)
       (internal citations omitted).

                               *               *    *

       A victim's in-court testimony, identifying the defendant as the
       perpetrator of a crime, is by itself sufficient to establish the
       identity element of that crime. See Commonwealth v.
       Patterson, 940 A.2d 493, 502 (Pa. Super. 2007)
       (holding evidence sufficient to establish the identity of the
       robber/burglar where “the complainant identified [the a]ppellant,
       in open court, as one of the men that entered his
       home”); Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa.
       Super. 1978) (“[I]t is settled that a positive identification by one
       witness is sufficient for conviction.”).


____________________________________________


5   We have already determined that Appellant waived his claim pertaining to
alleged hearsay. In addition, Appellant has failed to support his chain-of-
custody argument with legal or record citations. We find this aspect of
Appellant’s current argument waived.         See Pa.R.A.P. 2119; see also
Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012) (an
appellant's failure to set forth a relevant legal analysis and/or to cite to
relevant legal authority results in waiver).

                                          - 14 -
J-S41025-18


                             *            *             *

       “Variances in testimony ... go to the credibility of the witnesses
       and not the sufficiency of the evidence.” Commonwealth v.
       Galloway, 434 A.2d 1220, 1222 (Pa. 1981).

Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018).

       Upon review, there was sufficient evidence regarding Appellant’s

identity presented at trial. The confidential informant identified Appellant at

trial as the person who sold him narcotics.             N.T., 4/5/2017, at 60-73.

Likewise, at trial, Officer Krysick identified Appellant as the perpetrator of the

two crimes. Id. at 111-126. Because two witnesses identified Appellant at

trial, the trial court did not err by denying Appellant relief on his claim

challenging the sufficiency of identification evidence.

       Finally, Appellant avers that the trial court abused its discretion by

imposing an excessive sentence outside of the sentencing guidelines based

upon       unsubstantiated   evidence     and    overlooked     mitigating   factors.

Appellant’s Brief at 22-26. More specifically, regarding mitigation, Appellant

argues that the trial court failed to consider his age at the time of sentencing

(30 years old) and his childhood struggles in a bad environment. Id. at 25.

Further, Appellant maintains that the trial court erred by considering artificially

inflated     sentencing   guidelines    based    upon   “a    conviction   that   was

overturned/dismissed.”       Id.   Finally, Appellant contends “the jury was not

presented with a specific questions nor instructions to determine the weight




                                        - 15 -
J-S41025-18



of the alleged substances sold in this case […] in violation of Alleyne v.

United States, 570 U.S. 99, 133 S.Ct. 2151 (2013) and its progeny.”6 Id.

       We adhere to the following standards:

       Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to an appeal as of right. Prior to reaching the
       merits of a discretionary sentencing issue:

              We 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).

       When appealing the discretionary aspects of a sentence, an
       appellant must invoke the appellate court's jurisdiction by
       including in his brief a separate concise statement demonstrating
       that there is a substantial question as to the appropriateness of
       the sentence under the Sentencing Code. The requirement that
       an appellant separately set forth the reasons relied upon for
       allowance of appeal furthers the purpose evident in
       the Sentencing Code as a whole of limiting any challenges to the


____________________________________________


6 “[T]he [United States] Supreme Court rendered the Alleyne decision on
June 17, 2013, and held that sentencing schemes which predicated the
imposition of a mandatory minimum sentence on a fact found by
the sentencing court, by a preponderance of the evidence, were
unconstitutional.” Commonwealth v. DiMatteo, 177 A.3d 182, 185 (Pa.
2018) (emphasis added). “The decision was an extension of Apprendi v.
New Jersey, 530 U.S. 466, 147 L.Ed.2d 435 (2000), which held any fact that
increases the punishment for a crime beyond the statutorily prescribed
maximum must be submitted to the jury and found beyond a reasonable
doubt.” Id. Upon review of the record, Appellant did not receive a mandatory
minimum sentence and, therefore, Alleyne is inapplicable herein.

                                          - 16 -
J-S41025-18


      trial court's evaluation of the multitude of factors impinging on
      the sentencing decision to exceptional cases.

      The        determination         of       what         constitutes
      a substantial question must be evaluated on a case-by-case
      basis. A substantial question exists only when the appellant
      advances a colorable argument that the sentencing judge's
      actions were either: (1) inconsistent with a specific provision of
      the Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(internal case citations omitted) (emphasis in original).

      Upon review, Appellant has complied with the first three requirements

as set forth above. Appellant filed a motion for reconsideration of sentence

raising his discretionary aspect of sentencing claim, filed a notice of appeal

with this Court, and included a separate concise statement in his appellate

brief pursuant to Pa.R.A.P. 2119. As such, we proceed to determine whether

Appellant has raised a substantial question.

      Here, the trial court concluded that Appellant did not raise a substantial

question.   Trial Court Opinion, 1/19/2018, at 12.          It determined that

Appellant’s aggregate sentence, for both counts, was within the aggregate

standard range under the sentencing guidelines. Id. The trial court noted

that it imposed a period of incarceration only for PWID, opting to sentence

Appellant on the other count to probation. Id. The trial court “sentenced

Appellant to a period of incarceration only on one count, rather than two

consecutive terms of imprisonment, for the administrative benefit it confers

upon the Department of Corrections and Adult Probation and Parole.” Id. The



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trial court opined, however, that it would have “sentenced [Appellant] to the

exact same effective time period, but [with consecutive sentences on both]

counts [], again in the standard range.” Id.

      We disagree with the trial court’s conclusion that Appellant failed to raise

a substantial question.     Here, the trial court erred by finding that the

aggregate sentence (for PWID and PWID (non-controlled substance)) was

within the aggregate standard range of the guidelines. In examining whether

an appellant raises a substantial question, this Court looks at each, individual

sentence and whether each sentence falls outside of the standard range

guidelines.   See Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.

Super. 2014) (finding appellant presented a substantial question as to one of

three individual sentences).     “This Court has held that claims that the

sentencing court imposed a sentence outside the standard guidelines without

stating adequate reasons on the record presents a substantial question.” Id.

at 759. Here, there is no dispute that the standard sentencing guideline range

for PWID is 24 to 30 months of incarceration. See Appellant’s Brief at 22;

see also Trial Court Opinion, 1/19/2018, at 12. Appellant received a sentence

of 48 to 120 months of imprisonment. N.T., 6/12/2017, at 29. Appellant

avers that the trial court failed to state adequate reasons on the record for

imposing a sentence outside of the sentencing guidelines regarding his PWID




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conviction. Accordingly, we conclude that Appellant has raised a substantial

question for our review.7

       Our standard of review of a challenge to the discretionary aspects of

sentence is well-settled:

       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.

       In every case in which the court imposes a sentence for a felony
       or a misdemeanor, 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. The sentencing
       guidelines are not mandatory, and sentencing courts retain broad
       discretion in sentencing matters, and therefore, may sentence
       defendants outside the guidelines. In every case where the court
       imposes a sentence outside the guidelines adopted by the
       Pennsylvania Commission on Sentencing the court shall provide a
       contemporaneous written statement of the reason or reasons for
       the deviation from the guidelines. However, this requirement is
       satisfied when the judge states his reasons for the sentence on
       the record and in the defendant's presence. Consequently, all that
       a trial court must do to comply with the above procedural
       requirements is to state adequate reasons for the imposition of
       sentence on the record in open court.

       When imposing sentence, a court is required to consider the
       particular circumstances of the offense and the character of the
       defendant. In considering these factors, the court should refer to
       the defendant's prior criminal record, age, personal characteristics
       and potential for rehabilitation. Where pre-sentence reports exist,
____________________________________________


7   Appellant does not argue that the trial court abused its discretion in
imposing probation on his conviction for PWID (non-controlled substance)
and, thus, we confine our review to the sentence for PWID.

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      we shall presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.

Antidormi, 84 A.3d at 760–761 (internal citations, quotations, ellipses, and

brackets omitted).

      Here, the trial court had the benefit of a pre-sentence investigation

report, which it considered.   N.T., 6/12/2017, at 3 and 26.          Counsel for

Appellant initially conceded that he reviewed the report and had no changes

or edits.   Id. at 3.   However, when the Commonwealth was reciting his

criminal history, Appellant took issue with a felony drug charge that was

subsequently dismissed following an appeal.         Id. at 19-21.    That charge,

however, was not contained in the presentence report and the report

accurately reflects Appellant’s criminal history.    Id. at 20.     Finally, before

sentencing,    the   Commonwealth      recognized      that   the    pre-sentence

investigation report listed a standard sentence guideline for PWID at 27 to 33

months of incarceration, but the actual range was actually 24 to 30 months of

incarceration. Id. at 18. As such, the trial court was made aware of all the

relevant information, including the accurate guideline range, prior to

sentencing.

      Moreover, the trial court stated its reasons for departing from the

sentencing guidelines on the record.    The trial court examined Appellant’s

criminal history and determined that his prior firearm offenses, coupled with

his new PWID offenses, had a serious impact on the community. Id. at 27.

The trial court opined that Appellant was in need of rehabilitation because he

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committed crimes as both a juvenile and an adult and continued to violate

probation and parole and engage in criminal activity.      Id. at 27-28.   In

fashioning sentence, the trial court also considered Appellant’s age and

intellect, stating it had confidence that he could “become a productive member

of society if [he] would spend [his] energy in doing things that are legal as

opposed to illegal.” Id. at 29.

      We discern no abuse of discretion. The trial court had the benefit of a

pre-sentence investigation report. The parties made corrections to that report

and the trial court considered them.     Moreover, the trial court stated its

reasons for an upward departure at the time of sentencing. Appellant is not

entitled to relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/18




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