J-S41025-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEFFREY WILLIAM DENNIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 (noncontrolled 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.
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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 1⁄4 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, 1⁄4 

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 1⁄4 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 
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(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.
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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 
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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 
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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.

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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.
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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.

* * *
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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.
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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 
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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:

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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 
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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.”).
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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 
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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 
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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-ofcustody 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).
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* * *

“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 
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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.
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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