J. S76012/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JARIB POSTON, : No. 632 WDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, March 17, 2014,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0009366-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015

Jarib Poston appeals from the judgment of sentence of March 17, 

2014, following his guilty plea to one count each of simple assault, recklessly 

endangering another person (“REAP”), terroristic threats, and endangering 

the welfare of a child. We affirm.

The trial court has set forth the underlying facts of this matter as 

follows:

At the time [appellant] entered his guilty plea, 

he acknowledged his guilt at all charges and he 

acknowledged that he assaulted Lundon Minniefield 

by choking her, pulling her to the floor by her hair 

and striking her in the face with the butt end of a 

shotgun. At the time of the attack, Ms. Minniefield 

was holding her child. [Appellant] is the father of 

the child.[1] [Appellant]’s mother reported that she 

 

1 The child was only three days old at the time of the incident. (Notes of 

testimony, 12/17/13 at 8.)
J. S76012/14

- 2 -

was present during the incident and she attempted 

to stop the attack by jumping on [appellant]’s back. 

Various witnesses reported seeing the attack and 

observing [appellant] point the shotgun at 

Ms. Minniefield. They all indicated that [appellant] 

went outside the residence where the attack 

occurred and observed [appellant] discharge one 

round into a hillside and threaten to kill 

Ms. Minniefield. Ms. Minniefield obtained a 

Protection From Abuse order against [appellant].

Despite acknowledging his guilt at time of his 

guilty plea, [appellant] denied pointing the shotgun 

at Ms. Minniefield or striking her with the butt end of 

the shotgun during his presentence interview.

Trial court opinion, 7/18/14 at 2.

On December 17, 2013, appellant entered an open guilty plea to the 

above charges. The trial court rejected a plea agreement whereby appellant 

would serve 3 to 6 months’ incarceration, finding that it was not 

commensurate with the seriousness of the offenses. On March 17, 2014, 

appellant appeared for sentencing. The trial court imposed a sentence of 

111⁄2 to 23 months’ incarceration at count 4, terroristic threats, with no 

further penalty at the remaining counts. Appellant was also to serve 3 years 

of consecutive probation. Appellant’s sentence was beyond the aggravated 

range of the sentencing guidelines. A timely post-sentence motion to 

reconsider sentence was filed on March 18, 2014, and denied on March 20, 

2014. A timely notice of appeal was filed on April 17, 2014. Appellant 

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has 

filed an opinion.
J. S76012/14

- 3 -

Appellant has raised the following issue for this court’s review, 

challenging the discretionary aspects of his sentence:

I. Did the trial court abuse its discretion in 

sentencing [appellant] outside of the 

sentencing guidelines without providing a 

contemporaneous written statement of the 

reason or reasons for the deviation from the 

guidelines, in violation of 42 Pa.C.S. 

§ 9721(b)?

Appellant’s brief at 6.

A challenge to the discretionary aspects of 

sentencing is not automatically reviewable as a 

matter of right. Commonwealth v. Hunter, 768 

A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568 

Pa. 695, 796 A.2d 979 (2001). When challenging 

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. Commonwealth v. Mouzon, 571 

Pa. 419, 812 A.2d 617 (2002); Commonwealth v. 

Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 

42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “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 trial 

court’s evaluation of the multitude of factors 

impinging on the sentencing decision to exceptional

cases.’” Commonwealth v. Williams, 386 

Pa.Super. 322, 562 A.2d 1385, 1387 (1989) 

(en banc) (emphasis in original).

Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).

In his Pa.R.A.P. 2119(f) statement and also in the argument section of 

his brief, it is clear that the gist of appellant’s argument is that the trial court 
J. S76012/14

- 4 -

failed to reference the applicable guideline ranges at sentencing. 

(Appellant’s brief at 18, 21.) As the Commonwealth observes, this issue was 

not raised at sentencing or in appellant’s post-sentence motion. Rather, in 

his motion to reconsider sentence, appellant argued only that his sentence 

was excessive in light of various mitigating factors, including his age, lack of 

a prior criminal record, his strong family support system, the fact he is 

taking classes at jail towards earning his G.E.D., etc. (Docket #10.) 

Nowhere did appellant contend that the trial court failed to consider the 

guidelines or provide a contemporaneous written statement of the reason or 

reasons for deviating from the guidelines. As such, the issue is waived. See

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007), appeal 

denied, 936 A.2d 40 (Pa. 2007) (“an appellant can seek to appeal 

discretionary sentencing issues only after preserving them during the 

sentencing hearing or in post-sentence motions”), citing Commonwealth v. 

Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006); Commonwealth v. 

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 890 A.2d 

1057 (Pa. 2005) (“Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing or raised in 

a motion to modify the sentence imposed at that hearing.”) (citations 

omitted).

To the extent appellant argues that the trial court failed to articulate 

sufficient reasons, on the record, for its upward departure from the 
J. S76012/14

- 5 -

guidelines, he raises a substantial question for our review. See, e.g., 

Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), appeal 

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005), 

citing Commonwealth v. Eby, 784 A.2d 204 (Pa.Super. 2001) (“[T]he 

sentencing judge must state of record the factual basis and specific reasons 

which compelled him or her to deviate from the guideline ranges. When 

evaluating a claim of this type, it is necessary to remember that the 

sentencing guidelines are advisory only.”); Commonwealth v. Rodda, 723 

A.2d 212, 214 (Pa.Super. 1999) (en banc), quoting Commonwealth v. 

Wagner, 702 A.2d 1084, 1086 (Pa.Super. 1997) (“Where the appellant 

asserts that the trial court failed to state sufficiently its reasons for imposing 

sentence outside the sentencing guidelines, we will conclude that the 

appellant has stated a substantial question for our review.”).

However, the record belies such a claim.

When the sentence imposed is outside the 

sentencing guidelines, moreover, the court must 

provide a contemporaneous written statement of the 

reason or reasons for the deviation from the 

guidelines. This requirement is satisfied when the 

judge states his reasons for the sentence on the 

record and in the defendant’s presence.

Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995), 

reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citations and 

quotation marks omitted).
J. S76012/14

- 6 -

It is clear from the record that the trial court did not find appellant’s 

self-serving explanations for his conduct to be credible and that he did not 

take responsibility for his criminal behavior. (Notes of testimony, 3/17/14 at 

14-15.) The trial court observed that although he pled guilty, appellant 

continued to dispute what happened, including the version of events as 

recounted by three different eyewitnesses. (Id. at 5-6.) The trial court did 

not believe appellant’s explanation that he accidentally struck the victim with 

the butt end of his shotgun and accidentally discharged the gun when he 

was trying to unload it. (Id. at 11.) The trial court found that appellant’s 

conduct was “outrageously dangerous” and that he was not accepting full 

responsibility. (Id. at 4, 16.) Therefore, the trial court did put reasons on 

the record justifying an upward deviation from the sentencing guidelines. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2015