J-S31028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KHIRY QUARLES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1731 EDA 2021

Appeal from the Judgment of Sentence Entered August 6, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0001798-2020

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 08, 2022

Appellant Khiry Quarles appeals from the judgment of sentence imposed 

following a bench trial at which he was convicted of two counts of criminal 

attempt and one count of simple assault.1 On appeal, Appellant challenges 

the discretionary aspects of his sentence. We affirm.

The trial court summarized the relevant facts underlying Appellant’s 

convictions as follows:

On July 21, 2019, Appellant attacked the complainant, Ms. Hye 

Yun-Sohn, and attempted to rob her [of her] backpack and cell 

phone.

Ms. Yun-Sohn testified that she was walking near the intersection 

of 15th Street and Susquehanna Avenue in Philadelphia when she 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 901 and 2701, respectively. The crimes underlying the 

attempt charges were robbery (18 Pa.C.S. § 3701), and theft (18 Pa.C.S. § 

3921). 
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encountered Appellant. Ms. Yun-Sohn stated that she walked past 

Appellant, who had been walking in the same direction. As soon 

as she overtook Appellant, he grabbed her from behind by the 

shoulder straps of her backpack and violently shook her. 

Appellant then forcefully dragged Ms. Yun-Sohn backward across 

the ground. He demanded that Ms. Yun-Sohn give him her cell 

phone. Ms. Yun-Sohn refused to let go of her backpack and did 

not give her phone to Appellant. Appellant ultimately let go of Ms. 

Yun-Sohn’s backpack and walked away.

After the incident, Ms. Yun-Sohn called the police. She 

subsequently identified Appellant as her assailant after reviewing 

photos and surveillance footage of the area. Ms. Yun-Sohn’s 

fingers and arms were bloodied and she suffered cuts and bruises 

as a result of the attack.

Trial Ct. Op., 12/27/21, at 1-2 (formatting altered).

On April 5, 2021, the trial court convened a bench trial. At the 

conclusion of trial, the trial court convicted Appellant of attempted robbery, 

attempted theft, and simple assault. However, the trial court acquitted 

Appellant of recklessly endangering another person.2 On July 26, 2021, the 

trial court sentenced Appellant to three to six years of incarceration on the 

attempted robbery charge, and it imposed a sentence of no further penalty on 

the remaining charges. Order, 7/26/21.

Appellant filed a timely post-sentence motion for reconsideration of 

sentence challenging the discretionary aspects of his sentence and arguing 

that his sentence was illegal on the basis of merger. See Mot. for 

Reconsideration, 8/2/21, at 1-2. On August 6, 2021, the trial court granted 

Appellant’s motion in part and denied it in part. See Order, 8/6/21, at 1. The 

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2 18 Pa.C.S. § 2705.
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trial court denied Appellant’s motion for reconsideration regarding the 

discretionary aspects of the sentence concerning the duration of the sentence 

for attempted robbery. Id. However, the court granted relief on the merger 

issue, and it re-sentenced Appellant to a term of three to six years of 

incarceration for attempted robbery and ordered that the remaining 

convictions merged with the attempted robbery conviction for purposes of 

sentencing. Id. 

Appellant filed a timely appeal on August 20, 2021. Both the trial court 

and Appellant complied with Pa.R.A.P. 1925. 

On appeal, Appellant raises the following issue for our review:

Did not the sentencing court violate the requirements of 42 

Pa.C.S. § 9721(b) of the Sentencing Code which states 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, as the 

lower court seemed to exclusively focus on [A]ppellant’s criminal 

conduct rather than his rehabilitative needs, mitigating 

circumstances or mental health status?

Appellant’s Brief at 4.

Appellant’s claim presents a challenge to the discretionary aspects of his 

sentence. Appellant contends that the trial court’s imposition of a three-tosix-year sentence of incarceration was an abuse of discretion where the court 

failed to give individualized consideration to his personal history, rehabilitative 

needs, and background, without explaining how the sentence was the least 

restrictive sentence possible to protect the community and serve his own 
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rehabilitative needs. Appellant’s Brief at 14. Specifically, Appellant points to 

his traumatic childhood, birth defects, mental health issues, and drug 

addiction. See id. at 18. 

It is well settled that

challenges to the discretionary aspects of sentencing do not entitle 

an appellant to review as of right. An appellant challenging the 

discretionary aspects of his sentence must invoke this Court’s 

jurisdiction by satisfying a four-part test [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. § 9781(b).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some 

citations omitted and formatting altered). “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.” Id. (citation omitted).

Instantly, Appellant preserved his sentencing claims in a post-sentence 

motion, filed a timely appeal, and included a Pa.R.A.P. 2119(f) statement in 

his brief. See id. Further, we conclude that Appellant has presented a 

substantial question for review. See, e.g., Commonwealth v. Raven, 97 

A.3d 1244, 1253 (Pa. Super. 2014) (holding that an excessive sentence claim 

in conjunction with an assertion that the court failed to consider mitigating 
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factors raises a substantial question). Accordingly, we will address Appellant’s 

appeal on the merits.

Our well-settled standard of review 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.

Additionally, our review of the discretionary aspects of a sentence 

is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c) 

and (d). Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand 

the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines 

erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly 

unreasonable; or

(3) the sentencing court sentenced outside the 

sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the 

sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Raven, 97 A.3d at 1253-54 (some citations omitted).

“When imposing a sentence, the sentencing court must consider the 

factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public, 

[the] gravity of offense in relation to impact on victim and community, and 

[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892 

A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered). 

Additionally, the trial court “must consider the sentencing guidelines.” Id. at 

848 (citation omitted). Further, “[w]here the sentencing judge had the benefit 

of a [PSI], it will be presumed that he was aware of relevant information 

regarding [the defendant’s] character and weighed those considerations along 

with the mitigating statutory factors.” Id. at 849-50 (citation omitted).

At the sentencing, the trial court stated its reasoning as follows:

Back on July 26th of 2021, after considering [Appellant’s] 

presentence investigation and all the relevant statutory factors, 

such as [Appellant’s] prior record, the Pennsylvania sentencing 

guidelines and the need for the safety and protection of the 

general public, and the impact that these crimes had on the 

victim, along with considering the rehabilitative needs of 

[Appellant,] this [c]ourt sentenced [Appellant] to three to six 

years [of] imprisonment on the attempted robbery bill . . . . 

N.T. Sentencing, 8/6/21, at 4-6. In its Rule 1925(a) opinion, the trial court 

further explained: 

Prior to imposing sentence in the instant case, the court 

thoroughly reviewed Appellant’s pre-sentence investigation (PSI)
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[report], background and criminal history. The court also 

considered the statutory factors required, the need for the safety 

and protection of the public and community, the impact of the 

crime on the victim and the rehabilitative needs of Appellant.

Appellant had a difficult childhood. He also had an extensive 

criminal history, including a record of violent crimes. Appellant 

had prior convictions for burglary, escape, and robbery, graded as 

a felony of the first degree, and violations of the Uniform Firearms 

Act. He was on parole when he committed the offenses in the 

instant matter. Additionally, Appellant had numerous disciplinary 

infractions during his time in jail from 2016-2020, all of which 

showed non-compliance with the rehabilitative process. The court 

considered the evidence and arguments presented at both the trial 

and sentencing hearing. This included Appellant’s allocution 

testimony, which the court did not find persuasive. While

Appellant claimed to accept responsibility for his actions, he 

blamed the incident on “self-medicating” and “bad drugs.” 

Appellant dragged a much smaller unsuspecting woman down the 

street in an attempt to steal her backpack. The victim was 

traumatized by the attempted robbery and suffered physical 

injuries. Finally, the court considered the [Pennsylvania]

sentencing guidelines. The offense gravity score (OGS) for 

Robbery, graded as a felony of the second degree, was 7. 

Appellant’s prior record score (PRS) was RFEL. The recommended 

guideline sentencing range was 35-45 months +/- 6 months.

The sentence imposed by the court—three (3) to six (6) years in 

state prison—was toward the low end of the standard sentencing 

range of 35-45 months, and the court clearly stated the reasons 

for imposing such sentence on the record.

Trial Ct. Op. at 4-5 (formatting altered).

Based on our review of the record, we conclude that Appellant is due no 

relief. The trial court reviewed the PSI report prior to sentencing and was 

aware of Appellant’s rehabilitative needs, his traumatic childhood, his mental 

illness, and his issues with drugs and addiction. See Fullin, 892 A.2d at 849-

50 (explaining that when the trial court had the benefit of a PSI report, we 
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may presume it was aware of the relevant information regarding the 

defendant’s character and weighed those considerations along with mitigating 

factors). The trial court also considered the relevant sentencing factors, the 

Sentencing Guidelines, and stated its reasons for the sentence imposed. See 

id. at 848. As noted, Appellant had an extensive prior criminal record 

including convictions for violent felonies including robbery, and he was on 

parole at the time of the instant offense. See Trial Ct. Op. at 5. In addition 

to considering other relevant information, including mitigating factors, the trial 

court considered Appellant’s criminal history, and explained that Appellant’s 

prior record score was repeat felony one and felony two offender (RFEL), and 

noted that the offense gravity score in the instant case was seven. See id. 

The trial court then sentenced Appellant at the lower end of the standard range 

of the Sentencing Guidelines. On this record, we discern no abuse of 

discretion. See Raven, 97 A.3d at 1253. Accordingly, we affirm Appellant’s 

judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2022