J-S36009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ARCHIE SWINSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 588 EDA 2022

Appeal from the Judgment of Sentence Entered February 8, 2019

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

No(s): CP-51-CR-0003722-2018

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 18, 2023

Archie Swinson appeals from the aggregate judgment of sentence of

forty-four to 110 years of incarceration following his guilty plea to various

charges of sexual and physical assault. We affirm.

The trial court detailed the factual predicate for Appellant’s offenses as 

follows:

On March 4, 2018[,] at approximately 5:40 a.m. the complainant, 

a diminutive and small framed woman, was walking to work in the 

1300 block of Lombard Street in the City of Philadelphia. 

Appellant passed the complainant on the street, immediately 

turned around, grabbed her by the neck and dragged her into a 

nearby alley. In the alley, Appellant repeatedly punched the 

complainant’s face and head and covered her mouth when she 

tried to fight and scream for help.

As the complainant continued to scream, Appellant unmercifully 

tightened his grip around her neck[,] choking her airways. 

Appellant then began to pull off the complainant’s pants and 

shoved her face down on the ground. At this time, Appellant was 

joined and assisted by acquaintance and co-defendant, Kenneth 
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Faixmel, who upon entering the alley, ripped off the victim’s 

backpack from her body, removed her phone, wallet, and other 

valuables from her bag. 

Appellant continued his battering by pulling down the victim’s 

pants and telling her “I want your pussy.” The complainant 

repeatedly begged Appellant not to rape her. Unrelenting, 

Appellant demanded, “shut the fuck up and give me a blow job.” 

Fearful of being killed, the complainant complied, and Appellant 

forcibly inserted his penis into the complainant’s mouth. 

Apparently still unsatisfied, Appellant again commanded, “I want 

your pussy.” The victim repeated, “No.” Appellant . . . and the 

co-defendant . . . then fled the alley with the complainant’s 

valuables. 

Trial Court Opinion, 6/24/22, at 2 (cleaned up). 

The complainant was rushed to the hospital for treatment and a rape kit 

examination. She suffered a swollen face and lacerations to the back of her 

head that required five staples. See N.T. Plea, 12/11/18, at 15-16.

Video surveillance depicted Appellant’s initial attack of the complainant 

on Lombard Street as well as the conduct of Faixmel, who was arrested and 

implicated Appellant as the individual who physically and sexually assaulted 

the complainant. The complainant also identified Appellant as her assailant 

from a photo array. Police executed a search warrant of Appellant’s apartment 

and arrested him shortly thereafter. The jeans and hat depicted in the 

surveillance footage were recovered from Appellant’s apartment, and he was 

wearing the same sweatshirt and boots as in the video. See id. at 16-17. 

Based on the foregoing, Appellant was charged with numerous offenses, 

including robbery based on his conduct with co-defendant Faixmel. On the 

eve of Appellant’s joint jury trial with Faixmel, Faixmel decided to plead guilty 
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and testify against Appellant. Appellant was granted a continuance in 

response to the change in circumstances and in order to evaluate his 

competency. Appellant’s competency was confirmed and on December 11, 

2018, he entered an open guilty plea to aggravated assault, attempted rape 

by forcible compulsion, involuntary deviate sexual intercourse (“IDSI”), 

robbery, conspiracy to commit robbery, and strangulation. 

On February 8, 2019, following the completion of a pre-sentence 

investigation report and mental health evaluation, Appellant appeared for 

sentencing. The court sentenced Appellant to the following individual terms 

of incarceration, which were all ordered to run consecutively to each other: 

eight to twenty years for aggravated assault, eight to twenty years for 

attempted rape, eight to twenty years for IDSI, eight to twenty years for 

robbery, eight to twenty years for conspiracy to commit robbery, and four to 

ten years for strangulation. Appellant was designated a Tier III offender under 

the Sexual Offender Registration and Notification Act and required to register 

as a sexual offender for his lifetime.

Ultimately, Appellant filed a post-sentence motion nunc pro tunc alleging 

that his aggregate sentence was excessive and seeking the opportunity to 

present mitigation.

1

 See Post Sentence Motions, 12/24/21. The court held a 

hearing on February 15, 2022, during which it entertained argument from 

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1 We note that Appellant’s nunc pro tunc post-sentence motion was so late 

because he was serially abandoned by counsel. However, as it does not 

impact our review, we do not recount that history here.
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counsel and Appellant regarding Appellant’s mental health and upbringing. At 

the conclusion of the hearing, the court denied Appellant’s motion. 

Appellant timely filed a notice of appeal and,2thereafter, the court 

entered an order formally denying Appellant’s post-sentence motion. 

Although not ordered to do so, Appellant filed a Pa.R.A.P. 1925(b) statement. 

The court issued a Rule 1925(a) opinion. Appellant presents a single issue for 

our review:

Whether the trial court abused its discretion in sentencing 

Appellant to a manifestly excessive and clearly unreasonable 

aggregate term of forty-four years to one hundred and ten years 

for aggravated assault, attempted rape, [IDSI], robbery, 

conspiracy to [commit] robbery and strangulation at the original 

sentencing and after leaving the sentence in place after a 

reconsideration hearing.

Appellant’s brief at 8 (cleaned up).

In order for this Court to review a challenge to the discretionary aspects 

of a sentence, the defendant must first invoke our jurisdiction by satisfying 

the following four requirements:

(1) filing a timely notice of appeal; (2) properly preserving the 

issue at sentencing or in a post-sentence motion; (3) complying 

with Pa.R.A.P. 2119(f), which requires a separate section of the 

brief setting forth a concise statement of the reasons relied upon 

for allowance of appeal of the discretionary aspects of a sentence; 

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2 Despite the trial court announcing its decision to deny Appellant’s postsentence motion in open court on February 15, 2022, it did not enter a written 

order until February 28, 2022. Although Appellant’s notice of appeal was filed 

in the interim, we deem it timely filed pursuant to Pa.R.A.P. 905(a)(5) (stating 

that “[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”).
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and (4) presenting a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code, 42 

Pa.C.S. § 9781(b), or sentencing norms.

Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa.Super. 2022) (cleaned 

up). The existence of a substantial question is determined on a case-by-case 

basis, and will only be found where the defendant “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. (cleaned up).

Here, by virtue of the reinstatement of his post-sentence and appeal 

rights, Appellant has preserved his issue in a post-sentence motion and filed 

a timely notice of appeal. Additionally, he has included a Rule 2119(f) 

statement, arguing that he raised a substantial question because the 

“aggregate sentence is manifestly excessive as it is too severe a punishment 

for the individual circumstances of the case[.]” Appellant’s brief at 11.

We have held that “[t]he imposition of consecutive, rather than 

concurrent, sentences may raise a substantial question in only the most 

extreme circumstances, such as where the aggregate sentence is unduly 

harsh, considering the nature of the crimes and the length of imprisonment.” 

Commonwealth v. Dove, ___ A.3d ___, 2023 WL 4715188, at *6 (Pa.Super. 

2023) (cleaned up). “The key to resolving the preliminary substantial question 

inquiry is whether the decision to sentence consecutively raises the aggregate 

sentence to, what appears upon its face to be, an excessive level in light of 

the criminal conduct at issue in the case.” Id. (cleaned up). 
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Stated simply, Appellant challenges the trial court’s decision to impose 

consecutive rather than concurrent sentences. Such an argument does not 

raise a substantial question in light of the violent crimes Appellant committed 

against the complainant. See id. (noting that trial courts retain broad 

discretion to determine whether to impose sentences concurrently or 

consecutively, and a challenge to that discretion generally does not raise a 

substantial question). Here, Appellant pled guilty to snatching a woman off 

the street, dragging her into an alley, punching her repeatedly in the face, 

strangling her when she tried to scream for help, attempting to rape her, 

forcing her to perform oral sex on him, and, if that were not enough, assisting 

a compatriot in robbing her of her belongings. These were separate, violative 

acts, for which the trial court had the discretion to impose consecutive 

standard range sentences. Given the criminal conduct at issue and the length 

of incarceration imposed, we conclude that the trial court’s imposition of 

consecutive sentences did not result in a sentence so excessive on its face as 

to raise a substantial question.

Nonetheless, even if he did so convince us, he would not be entitled to 

relief. In his brief, Appellant contends that he “had a history of mental health 

issues” and “a terrible childhood[,]” and that “while the trial court may have 

been swayed by the emotion of the magnitude of this case,” he asks this Court 

“to be rational and give him a chance[.]” Appellant’s brief at 13. However, 

the record bears out that the trial court considered his mental health, 

upbringing, and all relevant mitigating factors before imposing the appealed-
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from sentence. See N.T. Sentencing, 2/8/19, at 26-30 (noting specifically 

that the court took into consideration, among other things, Appellant’s mental 

health and upbringing); N.T. Post-Sentence Motion Hearing, 2/15/22, at 11-

14 (explaining that on reexamination, the court stood by its original sentence 

after reviewing the pre-sentence reports and Appellant’s additional statements 

made during the post-sentence motion hearing regarding his mental health 

history and upbringing). Thus, assuming Appellant did raise a substantial 

question, we would discern no abuse of discretion on the part of the trial court 

in fashioning Appellant’s sentence.

Based upon the foregoing, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Date: October 18, 2023