J-S44006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NICHOLAS LEE MALONE

Appellant No. 1033 WDA 2014

Appeal from the Judgment of Sentence May 9, 2014

in the Court of Common Pleas of Bedford County

Criminal Division at No(s): CP-05-CR-0000450-2013

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 16, 2015

Appellant Nicholas Lee Malone appeals from the judgment of sentence 

entered in the Bedford County Court of Common Pleas following his jury trial 

conviction for burglary,1criminal conspiracy to commit burglary,2criminal 

trespass,3criminal conspiracy to commit criminal trespass,4receiving stolen 

property,5and theft by unlawful taking.6 We affirm.

____________________________________________

1 18 Pa.C.S. § 3502(a)(2).

2 18 Pa.C.S. § 903.

3 18 Pa.C.S. § 3503(a)(1)(ii).

4 18 Pa.C.S. § 903.

5 18 Pa.C.S. § 3925(a).

6 18 Pa.C.S. § 3921(a).
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On April 1, 2013, Appellant and his girlfriend broke into a home in 

Schellsburg, Napier Township, Bedford County, stole items from the home, 

traveled to Harrisburg, and then traded the stolen items for heroin. On 

March 14, 2014, Appellant was tried and convicted by a jury as stated, 

supra. On May 9, 2014, the trial court sentenced Appellant to an aggregate 

of 7 to 20 years of imprisonment. Appellant filed post-sentence motions 

that the trial court denied on May 22, 2014. On June 23, 2014, Appellant 

timely appealed.7 Both Appellant and the trial court complied with Pa.R.A.P. 

1925.

Appellant raises the following issues for our review:

1. Whether the trial court erred and abused its discretion when 

it denied Appellant’s motion in limine seeking the preclusion of 

the introduction of crimen falsi evidence pertaining to Appellant?

2. Whether the trial court erred and abused its [discretion] 

when it denied Appellant’s motion in limine seeking the 

preclusion of the introduction of evidence pertaining to the 

heroin addiction of Appellant and his alleged co-conspirator?

3. Whether the trial court erred and abused its discretion when 

it denied Appellant’s motion in limine seeking the preclusion of 

the use of a copy of Appellant’s recorded statement as it was not 

the original as required by Pa.R.E. 1002 which calls into question 

its authenticity pursuant to Pa.R.E. 1003?

4. Whether the trial court erred and abused its discretion when 

it denied Appellant’s timely filed post-sentence motions without a 

hearing?

____________________________________________

7 The 30th day technically fell on June 22, 2014, a Sunday. Accordingly, 

Appellant had until the next business day, Monday, June 23, 2014, to timely 

file his notice of appeal. See Pa.R.Crim.P. 720(A)(2); 1 Pa.C.S. § 1908.
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5. Whether the trial court erred and abused its discretion when 

it imposed an excessive sentence of an aggregate term of 

imprisonment of not less than seven (7) years nor more than 

twenty (20) years in light of all factors presented at the 

sentencing hearing?

6. Whether the trial court erred and abused its discretion when 

it denied Appellant’s timely filed post-sentence motion 

challenging the sufficiency and weight of the evidence utilized by 

the jury to convict Appellant of all counts of the information? 

7. Whether the trial court erred and abused its discretion when 

it failed to merge the sentences imposed for the offenses of 

burglary and criminal trespass?

Appellant’s Brief, p. 7-8 (all capitals omitted).

A. Evidentiary Claims

Appellant’s first three issues concern trial court evidentiary rulings. 

Appellant argues the trial court erred in denying his motions in limine

requesting the Commonwealth be precluded from introducing into evidence 

(1) his previous crimen falsi convictions, (2) his heroin addiction, and (3) a 

copy of his recorded statement. See Appellant’s Brief, pp. 12-19. Appellant 

is incorrect.

In reviewing the grant or denial of motions in limine, this Court applies 

an abuse of discretion standard of review. Commonwealth v. Stokes, 78 

A.3d 644, 654 (Pa.Super.2013). “An abuse of discretion will not be found 

based on a mere error of judgment, but rather exists where the court has 

reached a conclusion which overrides or misapplies the law, or where the 

judgment exercised is manifestly unreasonable, or the result of partiality, 
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prejudice, bias or ill-will.” Commonwealth v. Alicia, 92 A.3d 753, 760 

(Pa.2014). 

This Court has stated the well-established standard of review for 

admission of evidence claims as follows:

The admission or exclusion of evidence is within the sound 

discretion of the trial court, and in reviewing a challenge to the 

admissibility of evidence, we will only reverse a ruling by the 

trial court upon a showing that it abused its discretion or 

committed an error of law. Thus, [this Court’s] standard of 

review is very narrow. To constitute reversible error, an 

evidentiary ruling must not only be erroneous, but also harmful 

or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012).

1. Appellant’s crimen falsi convictions.

First, Appellant claims the trial court erred in ruling that, if Appellant 

testified, the Commonwealth could introduce his crimen falsi convictions as 

impeachment. This claim lacks merit.

Regarding the admission of crimen falsi convictions, the Pennsylvania 

Rules of Evidence provide, in relevant part, as follows:

Impeachment by Evidence of a Criminal Conviction

(a) In General. For the purpose of attacking the credibility of 

any witness, evidence that the witness has been convicted of a 

crime, whether by verdict or by plea of guilty or nolo contendere, 

must be admitted if it involved dishonesty or false statement.

(b) Limit on Using the Evidence After 10 Years. This 

subdivision (b) applies if more than 10 years have passed since 

the witness’s conviction or release from confinement for it, 

whichever is later. Evidence of the conviction is admissible only 

if:
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(1) its probative value substantially outweighs its 

prejudicial effect; and

(2) the proponent gives an adverse party reasonable 

written notice of the intent to use it so that the party has a 

fair opportunity to contest its use.

Pa.R.E. 609.

Here, Appellant had prior convictions for burglary and retail theft, both 

crimen falsi crimes. See Commonwealth v. Harris, 884 A.2d 920, 925 

(Pa.Super.2005) (burglary considered crimen falsi conviction admissible for 

impeachment purposes); Commonwealth v. Howard, 823 A.2d 911, 913 

(Pa.Super.2003) (retail theft is a crimen falsi conviction admissible for 

impeachment purposes). Further, the convictions were under 10 years old. 

Therefore, these crimes fell squarely within the ambit of Pa.R.E. 609, and 

the trial court neither erred nor abused its discretion in ruling that the 

Commonwealth would be allowed to introduce them for impeachment 

purposes, if Appellant chose to testify.8

2. Evidence pertaining to Appellant’s heroin addiction.

Next, Appellant claimed the trial court erred in permitting the 

Commonwealth to elicit evidence pertaining to his heroin addiction. This

claim also lacks merit.

In pertinent part, Pennsylvania Rule of Evidence 404 provides as 

follows:

____________________________________________

8 Appellant did not testify at trial.
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(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with 

the character.

(2) Permitted Uses. This evidence may be admissible for 

another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident. In a criminal case this evidence is admissible 

only if the probative value of the evidence outweighs its potential 

for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the prosecutor 

must provide reasonable notice in advance of trial, or during trial 

if the court excuses pretrial notice on good cause shown, of the 

general nature of any such evidence the prosecutor intends to 

introduce at trial.

Pa.R.E. 404(b) (emphasis provided).

Here, Appellant’s co-defendant – his girlfriend at the time they 

committed the crimes – testified that she and Appellant perpetrated the 

burglary to support their heroin addictions. The trial court allowed the 

Commonwealth to introduce this evidence to explain Appellant’s motive to 

commit the crime.9 The trial court explained as follows:

[T]he probative value of the evidence [regarding Appellant’s 

heroin addiction] outweighed any potential prejudicial effect, 

especially since the proffered evidence was not necessarily a 

criminal act directly related to the charges for which [Appellant] 

was on trial. This case involved a seemingly random burglary in 

a rural area with no indication of a relationship between the 

____________________________________________

9 We note that the trial court also determined that, given the nature of the 

evidence, the few days’ notice the Commonwealth provided Appellant of its 

intent to introduce evidence regarding Appellant’s heroin addiction was 

sufficient. See 1925(a) Opinion, p. 2.
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victim and the perpetrator. Therefore, we found evidence 

regarding motive to be of particular probative value in this case. 

And, we found the probative value to far outweigh the slim 

possibility of a jury convicting [Appellant] of [b]urglary due 

solely to a drug addiction. 

Trial Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion”), pp. 2-3. The trial 

court further instructed the jury to consider this evidence only for the 

purpose of motive. See N.T. 3/14/2014, pp. 260-61.10 

____________________________________________

10 The trial court instructed the jury as follows:

You have heard evidence tending to prove that [Appellant] used 

controlled substances, and specifically heroin. Now this is the 

conduct for which he is not on trial here today. Particularly, I 

am speaking of the testimony of Lakyn Checkeye. Now, this 

evidence is before you for a limited purpose. And that is for the 

purpose of tending to show motive to commit the crimes that of, 

for which he is on trial. This evidence must not be considered by 

you in any way other than for the purpose I just stated. Again, 

the own [sic] purpose that you may consider this evidence is to 

show motive to commit the crimes of which he is charged in this 

trial.

You must not regard this evidence as showing that [Appellant] is 

a person of bad character or criminal tendencies from which you 

might be inclined to infer guilt. In other words, you cannot use 

the fact that if you -- if you believe Lakyn Checkeye’s testimony 

regarding that issue, you must not believe that testimony about 

[Appellant] using controlled substances as evidence that he 

actually committed the [b]urglaries [sic] or convict him of that 

just because he used controlled substances. You can only use 

that to see if you find that there was motive to commit the 

actual crimes that are charged in this case.

N.T. 3/14/2014, pp. 260-61.
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We discern no abuse of discretion in the trial court’s admission of the 

heroin addiction evidence. We agree with the trial court that the 

Commonwealth provided ample notice of its intent to introduce this 

evidence. We further conclude that the trial court properly instructed the 

jury regarding its consideration of the heroin addiction evidence. 

Accordingly, Appellant’s heroin addiction evidentiary claim fails.

3. Appellant’s recorded statement.

Thirdly, Appellant claims the trial court erred in admitting into 

evidence a duplicate recording of Appellant’s confession. Again, Appellant’s 

claim lacks merit.

The “best evidence rule” requires the production of the original of a 

writing, recording, or photograph to prove its contents. See Pa.R.E. 1002.11 

However, Pennsylvania’s Rules of Evidence expressly provide for the 

admission of duplicates as follows:

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as the original 

unless a genuine question is raised about the original’s 

____________________________________________

11 Rule 1002 states:

Rule 1002. Requirement of the Original

An original writing, recording, or photograph is required in order 

to prove its content unless these rules, other rules prescribed by 

the Supreme Court, or a statute provides otherwise.

Pa.R.E. 1002. 
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authenticity or the circumstances make it unfair to admit the 

duplicate.

Pa.R.E. 1003. Further, this Court has explained the limits of the best 

evidence rule as follows:

The “best evidence” rule, now established in Pa.R.E. 1002, limits 

the method of proving the terms of a writing to the presentation 

of the original writing, where the terms of the instrument are 

material to the issue at hand, unless the original is shown to be 

unavailable through no fault of the proponent. The rule applies 

to the proof of the contents of documents when the contents of 

those documents are material to, rather than mere evidence of, 

the issues at bar. Beyond that, the evidentiary ruling of the trial 

court allowing “secondary evidence” should not be reversed 

except for a grave abuse of discretion[.]

Commonwealth v. Townsend, 747 A.2d 376, 379-80 (Pa.Super.2000) 

(internal citations and some quotation marks omitted). 

Here, police originally digitally recorded Appellant’s confession, then 

emailed the digital file, then transferred the file to the CD admitted into 

evidence at trial. As the trial court explained:

[T]he best evidence rule is not applicable here. . . . Here, the 

actual tape recording [of Appellant’s confession] was not 

essential to proving any of the criminal charges. Rather, the 

taped confession was supplemental evidence tending to show 

[Appellant’s] guilt. The best evidence rule is therefore 

inapplicable to the tape recording, and the Commonwealth 

needed only to authenticate the copy for admission, which it did.

1925(a) Opinion, p. 3. 

Again, we discern no abuse of discretion in the trial court’s admission 

of this evidence. We agree with the trial court that the best evidence rule is 

inapplicable to this recording. We further agree that the Commonwealth 
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sufficiently authenticated the recording.12 Accordingly, this evidentiary claim 

also fails.

B. Post-Sentence Motion Claims

Appellant’s fourth and sixth claims concern the trial court’s disposition 

of his post-sentence motion. See Appellant’s Brief, pp. 19-20, 23-25. 

Appellant claims, first, that the trial court erred in denying his post-sentence 

motion without a hearing, and, second, that the trial court erred in denying 

his post-sentence motion on the merits. See id. These claims lack merit.

1. Denial of the post-sentence motion without a hearing.

Appellant’s post-sentence motion requested reconsideration and/or

modification of his sentence. Regarding such optional post-sentence 

motions, the Pennsylvania Rules of Criminal Procedure require the trial court 

to “determine whether a hearing or argument on the motion is required, and 

if so, [] schedule a date or dates certain for one or both.” Pa.R.Crim.P. 

720(B)(2)(b). “There is no requirement that oral argument be heard on 

every post-sentence motion.” Pa.R.Crim.P. 720, Comment.

Here, Appellant filed a timely post-sentence motion. The trial court 

reviewed the motion, determined a hearing was not required, and denied the 

____________________________________________

12 We further note that the trial record supports the trial court’s observation 

that, “other than bald assertions unsupported by any testimony, [Appellant] 

failed to raise any specific objections to the authenticity of the tape 

recording.” 1925(a) Opinion, p. 3.
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motion. The trial court acted within its power and discretion in denying the 

motion without a hearing. Pa.R.Crim.P. 720(B)(2)(b). Appellant’s 

suggestion that the trial court was required to schedule a hearing or 

argument on his post-sentence motion lacks merit.

2. The post-sentence motion’s weight and sufficiency of the evidence claims 

lack merit.

Appellant also claims the trial court erred in denying his post-sentence 

motion on the merits. See Appellant’s Brief, pp. 24-25. Appellant is 

incorrect.

To the extent Appellant’s post-sentence motion raised claims regarding 

the sufficiency and weight of the evidence,13 Appellant effectively requested 

____________________________________________

13 Appellant’s post-sentence motion reads, in its entirety:

POST SENTENCE MOTION

And now, comes Defendant, by and through the Public 

Defender’s Office, and respectfully moves this Court to grant the 

following relief:

Motion for Reconsideration and/or Modification of 

Sentence:

1. Defendant was sentenced by this Honorable Court on or about 

May 9, 2014, to an aggregate term of not less than seven (7) 

years or more than twenty (20) years to be served in a state 

correctional institution.

2. Defendant challenges the sufficiency and weight of the 

evidence used to convict him of the offenses in which he was 

charged.

(Footnote Continued Next Page)
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the trial court grant him a post-sentence judgment of acquittal. “A motion 

for judgment of acquittal challenges the sufficiency of the evidence to 

sustain a conviction on a particular charge, and is granted only in cases in 

which the Commonwealth has failed to carry its burden regarding that 

charge.” Commonwealth v. Foster, 33 A.3d 632, 635 (Pa.Super.2011) 

(citation omitted).

The Crimes Code defines burglary, in relevant part, as follows:

(a) Offense defined.--A person commits the offense of 

burglary if, with the intent to commit a crime therein, the 

person:

. . .

(Footnote Continued) _______________________

3. Defendant believes that the sentence was excessive in light of 

all the factors presented.

4. Defendant believes this Honorable Court erred in failing to 

merge the sentences of Burglary and Criminal Trespass.

WHEREFORE, Defendant respectfully requests this Honorable 

Court to enter an Order consistent with that herein above set 

forth.

Appellant’s Post-Sentence Motion, May 19, 2014, p. 1. 

We note that the plain text of this post-sentence motion indicates it is a 

motion for reconsideration or modification of sentence. To the extent the 

post-sentence motion mentions weight and sufficiency of the evidence, 

Appellant wholly failed to state with specificity or otherwise develop these 

alleged “challenges”. See Appellant’s Post-Sentence Motion. Therefore, 

only with the greatest of difficulty and/or the most lenient of standards 

would we find such a motion adequately raised either a weight or sufficiency 

of the evidence claim for post-sentence motion purposes. However, because 

Appellant is clearly not entitled to relief on these claims, we will address 

them as though they were properly raised.
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(2) enters a building or occupied structure, or separately 

secured or occupied portion thereof that is adapted for 

overnight accommodations in which at the time of the 

offense no person is present[.]

18 Pa.C.S. § 3502(a)(2). The Crimes Code further defines “occupied 

structure” as “[a]ny structure, vehicle or place adapted for overnight 

accommodation of persons, or for carrying on business therein, whether or 

not a person is actually present.” 18 Pa.C.S. § 3501. 

The Crimes Code defines criminal trespass, in relevant part, thusly:

(a) Buildings and occupied structures.--

(1) A person commits an offense if, knowing that he is not 

licensed or privileged to do so, he:

. . .

(ii) breaks into any building or occupied structure or 

separately secured or occupied portion thereof.

18 Pa.C.S. § 3503.

The Crimes Code defines the crime of receiving stolen property as 

follows:

(a) Offense defined.--A person is guilty of theft if he 

intentionally receives, retains, or disposes of movable property 

of another knowing that it has been stolen, or believing that it 

has probably been stolen, unless the property is received, 

retained, or disposed with intent to restore it to the owner.

18 Pa.C.S. § 3925(a).

Regarding theft by unlawful taking, the Crimes Code provides, in 

pertinent part:
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(a) Movable property.--A person is guilty of theft if he 

unlawfully takes, or exercises unlawful control over, movable 

property of another with intent to deprive him thereof.

18 Pa.C.S. § 3921(a).

Finally, the crime of criminal conspiracy implicates the following 

principles. “The material elements of conspiracy are: (1) an intent to 

commit or aid in an unlawful act, (2) an agreement with a co-conspirator 

and (3) an overt act in furtherance of the conspiracy.” Commonwealth v. 

Gross, 101 A.3d 28, 34 (Pa.2014) (internal quotations and citation 

omitted); see also 18 Pa.C.S. § 903. The overt act necessary to establish 

criminal conspiracy need not be committed by the defendant; it need only be 

committed by a co-conspirator. Commonwealth v. McCall, 911 A.2d 992, 

996 (Pa.Super.2006). 

Further, this Court has explained the agreement/intent elements of 

conspiracy as follows:

The essence of a criminal conspiracy is a common 

understanding, no matter how it came into being, that a 

particular criminal objective be accomplished. Therefore, a 

conviction for conspiracy requires proof of the existence of a 

shared criminal intent. An explicit or formal agreement to 

commit crimes can seldom, if ever, be proved and it need not 

be, for proof of a criminal partnership is almost invariably 

extracted from the circumstances that attend its activities. 

Thus, a conspiracy may be inferred where it is demonstrated 

that the relation, conduct, or circumstances of the parties, and 

the overt acts of the co-conspirators sufficiently prove the 

formation of a criminal confederation. The conduct of the parties 

and the circumstances surrounding their conduct may create a 

web of evidence linking the accused to the alleged conspiracy 

beyond a reasonable doubt.
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McCall, 911 A.2d at 996-97. The factors of the relation between the 

parties, knowledge of and participation in the crime, and the circumstances 

and conduct of the parties surrounding the criminal episode, “may coalesce 

to establish a conspiratorial agreement beyond a reasonable doubt where 

one factor alone might fail.” Commonwealth v. Bricker, 882 A.2d 1008, 

1017 (Pa.Super.2005). 

Here, the Commonwealth’s evidence against Appellant consisted, inter 

alia, of the detailed testimony of his co-conspirator14 and Appellant’s own

recorded confession to the crimes. This evidence sufficiently established the 

elements of all charged crimes. Accordingly, the trial court properly denied 

Appellant’s request for a judgment of acquittal.15

C. Sentencing Claims

Appellant’s fifth and seventh claims concern the sentence imposed by 

the trial court. See Appellant’s Brief, pp. 20-23, 25-27. Appellant’s fifth 

claim challenges the discretionary aspects of his sentence; his seventh claim 

____________________________________________

14 The co-conspirator – Appellant’s girlfriend at the time of the crimes – was 

an eyewitness to, and participant in, the crimes.

15 Appellant’s weight of the evidence claim merits no discussion. This claim 

fails for the simple reason that, aside from cross-examination, Appellant 

proffered no contrary testimony or evidence against which to weigh the 

Commonwealth’s evidence. To the extent Appellant claims the testimony of 

the Commonwealth’s witnesses was unbelievable, we defer to the jury’s 

credibility determinations. Commonwealth v. Smith, 97 A.3d 782, 790 

(Pa.Super.2014) (“[T]he [trier] of fact while passing upon the credibility of 

witnesses and the weight of the evidence produced, is free to believe all, 

part or none of the evidence.”).
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argues the trial court improperly declined to merge his burglary and criminal 

trespass convictions for sentencing purposes. See id. Neither claim affords 

Appellant relief.

1. The discretionary aspects of sentence claim.

Appellant claims the trial court imposed an excessive sentence by 

failing to consider his drug use and rehabilitative needs. See Appellant’s 

Brief, pp. 20-23. This claim raises a challenge to the discretionary aspects 

of the Appellant’s sentence.

“Challenges to the discretionary aspects of sentencing do not entitle a 

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super.2011). Before this Court can address such a discretionary 

challenge, an appellant must satisfy the following four-part test:

(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.

Allen, 24 A.3d at 1064. “The determination of whether a particular issue 

raises a substantial question is to be evaluated on a case-by-case basis.” 

Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005). 

“Generally, however, in order to establish a substantial question, the 

appellant must show actions by the sentencing court inconsistent with the 

Sentencing Code or contrary to the fundamental norms underlying the 
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sentencing process.” Commonwealth v. Titus, 816 A.2d 251, 255 

(Pa.Super.2003).

Here, Appellant filed a timely notice of appeal, and preserved his 

issues in a motion for reconsideration of sentence. However, despite his 

contention to the contrary,

16 Appellant’s brief does not include a statement 

of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 

2119(f).17 See Appellant’s Brief, p. 21. This technical noncompliance would 

be a fatal defect had the Commonwealth objected in its brief. See, e.g.,

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.Super.2012) (“If a 

defendant fails to include an issue in his Rule 2119(f) statement, and the 

Commonwealth objects, then the issue is waived and this Court may not 

____________________________________________

16 Appellant claims his brief includes a Rule 2119(f) statement, and the 

brief’s index includes a notation that the statement pursuant to Pa.R.A.P. 

2119(f) appears on page 13. See Appellant’s Brief, pp. 2, 21. Appellant’s 

brief, however, includes no Pa.R.A.P. 2119(f) statement. Page 13 of 

Appellant’s brief is the second page of his argument that the trial court 

improperly ruled that the Commonwealth could introduce his crimen falsi 

convictions, if he chose to testify.

17 In pertinent part, Rule 2119 provides:

An appellant who challenges the discretionary aspects of a 

sentence in a criminal matter shall set forth in his brief a concise 

statement of the reasons relied upon for the allowance of appeal 

with respect to the discretionary aspects of a sentence. The 

statement shall immediately precede the argument on the merits 

with respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f). 
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review the claim.”); see also Commonwealth v. Brougher, 978 A.2d 373, 

375 (Pa.Super.2009) (“[C]laims relating to the discretionary aspects of a 

sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f) 

statement in his brief and the opposing party objects to the statement’s 

absence.”); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987) 

(failure to comply with procedural requirements for review of discretionary 

aspects of sentence claims is fatal to claim). However, because the 

Commonwealth did not object in its brief,18 we may overlook the omission of 

a Pa.R.A.P. 2119(f) statement and reach the merits of Appellant’s issue. 

See Commonwealth v. Gould, 912 A.2d 869, 872 (quoting

Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super.2005) (“[i]n the 

absence of any objection from the Commonwealth, we are empowered to 

review claims that otherwise fail to comply with Rule 2119(f)”) (internal 

brackets omitted). Accordingly, we now determine whether Appellant has 

raised a substantial question for review and, if so, proceed to a discussion of 

the merits of the claim. Pa.R.A.P. 2119(f); Tuladziecki, supra. 

“A substantial question will be found where the defendant advances a 

colorable argument that the sentence imposed is either inconsistent with a 

specific provision of the [sentencing] code or is contrary to the fundamental 

norms which underlie the sentencing process.” Commonwealth v. 

____________________________________________

18 See Commonwealth’s Brief, pp. 15-18.
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Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see 

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a 

substantial question on a case-by-case basis.” Id. “[A] claim of 

excessiveness that is raised against a sentence within the statutory limits 

fails to raise a substantial question as a matter of law.” Commonwealth v. 

Mouzon, 812 A.2d 617, 623 (Pa.2002). However, “a substantial question 

exists when a sentencing court imposed a sentence in the aggravated range 

[of the Sentencing Guidelines] without considering mitigating factors.” 

Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12 (Pa.Super.2010) (citing

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003)) 

(emphasis in original).

Here, Appellant alleges that the trial court imposed an unreasonable 

sentence because it imposed an aggravated range sentence and failed to 

properly consider certain alleged mitigating factors. See Appellant’s Brief, 

pp. 20-23. Accordingly, Appellant raises a substantial question for review. 

See Rhoades, supra. However, Appellant’s claim fails on the merits. 

We review discretionary aspects of sentence claims under the following 

standard of review:

If this Court grants appeal and reviews the sentence, the 

standard of review is well-settled: sentencing is vested in the 

discretion of the trial court, and will not be disturbed absent a 

manifest abuse of that discretion. An abuse of discretion 

involves a sentence which was manifestly unreasonable, or 

which resulted from partiality, prejudice, bias or ill will. It is 

more than just an error in judgment.
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Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006) 

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did 

not abuse its discretion. See generally N.T. 5/9/2014. The trial court 

imposed a sentence that was consistent with the protection of the public, 

took into account the gravity of the offense as it related to the impact on the 

life of the victim and on the community, and considered the Appellant’s 

rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id. The trial 

court considered the presentence investigative report,19 Appellant’s criminal 

background, the circumstances of the crimes, the sentencing guidelines,20

Appellant’s allocution, his lack of remorse, the arguments of counsel, and 

Appellant’s drug addiction and rehabilitative needs – the very mitigating 

factors Appellant alleged the trial court ignored. See N.T., 7/1/2014, pp. 4-

13. Accordingly, Appellant’s excessiveness claim fails on the merits.

____________________________________________

19 We note that, where a sentencing court had the benefit of a presentence 

investigation report, we can assume the sentencing court was aware of 

relevant information contained therein and weighed that information along 

with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171 

(Pa.Super.2010).

20 The Commonwealth argued, and the trial court noted, that the sentencing 

guidelines employed in sentencing were low in that they did not take into 

account all of Appellant’s applicable convictions. See N.T. 5/9/2014, p. 10. 

To the extent the trial court’s sentencing of Appellant based on incorrect 

guidelines represents error, we find such error harmless because it created a 

downward departure from the correct guidelines.
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2. The merger claim.

Finally, Appellant argues the trial court should have merged his 

burglary and criminal trespass convictions for sentencing purposes. See

Appellant’s Brief, pp. 25-27. Appellant is incorrect.

A claim that a trial court should have merged convictions for 

sentencing purposes raises a challenge to the legality of the sentence. 

Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.Super.2012). 

Accordingly, our standard of review is de novo and our scope of review is 

plenary. Id.

Pennsylvania’s Sentencing Code governs merger and provides, in 

pertinent part:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the 

other offense.

42 Pa.C.S. § 9765. “[A] plain reading of § 9765 reveals the General 

Assembly’s intent that crimes with different statutory elements be punished 

separately.” Commonwealth v. Taggart, 997 A.2d 1189, 1200 

(Pa.Super.2010) (quoting Commonwealth v. Baldwin, 985 A.2d 830, 831 

(Pa.2009)). Thus, “the current state of merger law in Pennsylvania makes 

clear there is no merger if each offense requires proof of an element the 

other does not.” Quintua, 56 A.3d at 401.
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In Quintua, supra, a panel of this Court addressed the question of 

whether burglary and criminal trespass merge for sentencing purposes. The 

Court ruled these crimes do not merge, noting:

The plain language of the respective statutes demonstrates why 

they do not merge. Criminal trespass contains an element of 

knowledge—a person committing that offense must know he is 

not privileged to enter the premises. Burglary has no such 

knowledge requirement. Burglary does, however, require intent 

to commit a crime within the premises, an element that criminal 

trespass lacks. As each offense requires proof of an element the 

other does not, the sentences should not merge.

Quintua, 56 A.3d at 402.

Appellant concedes the current state of Pennsylvania law is that 

burglary and criminal trespass do not merge for sentencing purposes, but 

urges this Court to reconsider the holding of Quintua. See Appellant’s 

Brief, p. 26. This we may not do. Commonwealth v. Beck, 78 A.3d 656, 

659 (Pa.Super.2013) (noting that one panel of the Superior Court is not 

empowered to overrule another panel of the Superior Court). Accordingly, 

Appellant’s sentencing merger claim fails.

For the preceding reasons, we affirm Appellant’s judgment of 

sentence. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2015