J-S75037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

DEBBIE NICHOLS, :

:

Appellant : No. 3438 EDA 2015

Appeal from the Judgment of Sentence June 12, 2015

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): CP-51-CR-0011197-2014; 

CP-51-CR-0011198-2014

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2016

Debbie Nichols (“Nichols”) appeals from the judgment of sentence 

entered after she pled guilty to two counts of aggravated assault, and one 

count each of persons not to possess firearms and possession of an 

instrument of crime (“PIC”).1 We affirm.

In Philadelphia on July 14, 2014, Nichols shot two individuals, causing 

them minor/moderate injuries.2 In March 2015, Nichols entered a nonnegotiated guilty plea to the above-mentioned offenses. Prior to sentencing, 

the trial court ordered the preparation of a pre-sentence investigation report 

(“PSI”). On June 12, 2015, the trial court sentenced Nichols to serve 3 to 8 

years in prison on each of the aggravated assault convictions, graded as a 

 

1 See 18 Pa.C.S.A. §§ 2702(a), 6105(a)(1), 907(a). 

2 Nichols alleged at sentencing that she had been previously physically 

abused and tortured by one of the victims, and “went berserk” on the day of 

the shooting, in retaliation. N.T., 06/12/15, at 26-27.
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first-degree felony, and ordered these sentences to run concurrently.3 For 

her convictions of persons not to possess firearms and PIC, the trial court 

imposed sentences of 5 years of probation, to run concurrently to each 

other, but consecutively to the sentences for aggravated assault. Nichols 

timely filed a post-sentence Motion, challenging the discretionary aspects of 

her sentence. Following the denial of this Motion (by operation of law), 

Nichols filed a timely Notice of Appeal. In response, the trial court ordered 

Nichols to file a Pa.R.A.P. 1925(b) concise statement of errors complained of 

on appeal. Nichols timely filed a Concise Statement, after which the trial 

court issued an Opinion.

On appeal, Nichols presents the following issue for our review:

[Whether] the lower court abuse[d] its discretion by 

fashioning a sentence that exceeded that which is necessary 

to protect the public[; and the court] did not take into 

consideration the gravity of the offense, and failed to address 

[Nichols’s] rehabilitative needs and potential[?]

Brief for Appellant at 4 (capitalization omitted).

Nichols challenges the discretionary aspects of her sentence, from 

 

3 Notably to the instant appeal, the trial court’s sentence on the aggravated 

assault convictions was below the applicable minimum guideline range of 41⁄2 

to 51⁄2 years in prison. Nichols faced a statutory maximum sentence of 20 

years in prison on each conviction.
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which there is no absolute right to appeal.4 See Commonwealth v. Hill, 

66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant 

has preserved the sentencing challenge for appellate review, by raising it in 

a timely post-sentence motion, she must (1) include in her brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and 

(2) show that there is a substantial question that the sentence imposed is 

not appropriate under the Sentencing Code. Hill, 66 A.3d at 363-64.

Here, Nichols included a Rule 2119(f) Statement in her brief. See

Brief for Appellant at 9. Accordingly, we will examine the Rule 2119(f) 

Statement to determine whether a substantial question exists. See Hill,

supra. Nichols asserts as follows:

[T]he lower court imposed a term of incarceration that was far 

greater than was necessary to protect the public[,] and the lower 

court failed to craft a sentence that reasonably reflected the 

gravity of the offense as it relates to the impact on the victims’ 

lives. Furthermore, given [Nichols’s] past, the fact that she 

acted only under duress, and immediately confessed to 

investigators, the lower court failed to take into adequate 

consideration her rehabilitative needs and potential.

Brief for Appellant at 9.

 

4 The “open” guilty plea Nichols entered permits her to challenge the 

discretionary aspects of her sentence. See Commonwealth v. Tirado, 870 

A.2d 362, 365 n.5 (Pa. Super. 2005) (citing Commonwealth v. Dalberto, 

648 A.2d 16, 20 (Pa. Super. 1994) (explaining that, when the plea 

agreement is open, containing no bargain for a specific or stated term of 

sentence, the defendant will not be precluded from appealing the 

discretionary aspects of his/her sentence)).
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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. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation 

omitted); see also 42 Pa.C.S.A. § 9781(b). 

Nichols’s claims fail to raise a substantial question that her sentence is 

not appropriate under the Sentencing Code. See Disalvo, 70 A.3d at 903 

(stating that “[t]his Court has held on numerous occasions that a claim of 

inadequate consideration of mitigating factors does not raise a substantial 

question for our review.”);5 Commonwealth v. Griffin, 65 A.3d 932, 936-

37 (Pa. Super. 2013) (noting that an allegation that the trial court failed to 

consider the particular circumstances involving a defendant, including 

his/her rehabilitative needs, goes to the weight accorded to various 

sentencing factors and does not raise a substantial question); 

Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) 

(observing that a bald or generic assertion that a sentence is excessive does 

not, by itself, raise a substantial question justifying this Court’s review of the 

 

5 We acknowledge that “a substantial question exists when a sentencing 

court imposed a sentence in the aggravated range without considering 

mitigating factors.” Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12 

(Pa. Super. 2010) (emphasis in original); see also Commonwealth v. 

Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (same). However, in the 

instant case, the trial court sentenced Nichols below the sentencing guideline 

range.
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merits of the underlying claim); Commonwealth v. Mobley, 581 A.2d 949, 

952 (Pa. Super. 1990) (stating that a claim that a sentence failed to take 

into consideration the defendant’s rehabilitative needs and was manifestly 

excessive did not raise a substantial question, where the sentence was 

within the sentencing guidelines); see also Commonwealth v. Mouzon, 

812 A.2d 617, 623 (Pa. 2002) (stating that “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.”).

Nevertheless, even if Nichols had presented a substantial question, we 

would determine that the sentencing court properly exercised its discretion 

in imposing a reasonable sentence. 

We review discretionary aspects of sentence claims under the following 

standard: “[S]entencing 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.” Commonwealth v. Fullin, 892 A.2d 843, 

847 (Pa. Super. 2006). Moreover, the sentencing court has broad discretion 

in choosing the range of permissible confinement that best suits a particular 

defendant and the circumstances surrounding her crime. Commonwealth

v. Walls, 846 A.2d 152, 154-55 (Pa. Super. 2004). The Sentencing Code 

sets forth the considerations a trial court must take into account when 

formulating a sentence, providing that “the court shall follow the general 

principle that the sentence imposed should call for confinement that is 
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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.” 42 Pa.C.S.A. § 9721(b).

Initially, we observe that the sentencing court here had the benefit of 

a PSI, which the court expressly stated it had considered prior to imposing 

sentence. N.T., 06/12/15, at 28. Where a sentencing court is informed by a 

PSI, it is presumed that the court is aware of all appropriate sentencing 

factors and considerations (including any mitigating factors), and that 

“where the court has been so informed, its discretion should not be 

disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 

2009). 

Further, in its Opinion, the trial court addressed Nichols’s challenge to 

her sentence as follows:

The undisputed [minimum] sentencing guideline range was 54 to 

66 months[, plus or minus] 12 months on the deadly weapon 

used matrix. Prior to imposing sentence, [the sentencing c]ourt 

considered the [PSI], the sentencing guidelines and the

circumstances and seriousness of a gun being used on the 

streets of the city. (N.T.[,] 06/12/15[, at] 5, 28, 29)[.] The 

[c]ourt further noted for the record that it considered the long 

history between [Nichols] and one of the victims to be
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mitigation,

[6]

and that it was possible that [Nichols] could be 

rehabilitated. (N.T.[,] 06/12/15[, at] 29)[.] The [c]ourt 

determined that the protection of the public and the gravity of 

the offenses[,] along with the mitigating circumstances[,] 

warranted the sentence of 36-96 months [of] incarceration[,] 

followed by 5 years [of] probation, a sentence well below the 

mitigated guideline range.

Trial Court Opinion, 1/13/16, at 3 (footnote added); see also, e.g., Moury, 

992 A.2d at 171 (stating that “where a sentence is within the standard range 

of the guidelines, Pennsylvania law views the sentence as appropriate under 

the Sentencing Code.”). Moreover, contrary to Nichols’s implication, 

“[a]lthough Pennsylvania’s system stands for individualized sentencing, the 

court is not required to impose the ‘minimum possible’ confinement.” 

Moury, 992 A.2d at 171 (citation omitted). Additionally, contrary to 

Nichols’s assertion, because the sentencing court had reviewed her PSI, it, in 

fact, considered the purportedly mitigating factors of, inter alia, her age and 

lack of prior convictions for a violent crime. The sentencing court was also 

aware of Nichols’s rehabilitative needs/potential, as evidenced by the court’s 

 

6 Concerning Nichols’s claim of the alleged abuse she had suffered from one 

of the victims, the sentencing court stated, inter alia, as follows:

[T]his is certainly an unfortunate incident that has occurred here. 

And I agree with you on one thing, [] Nichols, that [the shooting] 

probably could have been prevented had you taken some action 

previously. However, the fact is that it did occur. It’s a violent 

event[,] ... [which involved] the use of a gun on the streets in the 

city ...[,] where not one[,] but two individuals were injured as the 

result of your actions. So actually[,] that cannot be excused in the 

sense of the sentence that should be imposed on you.

N.T., 06/12/15, at 28.
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stating at sentencing its belief that Nichols could be rehabilitated. N.T., 

06/12/15, at 29. Accordingly, Nichols’s challenge to her sentence would fail 

on the merits.

Based upon the foregoing, we discern no abuse of discretion by the 

sentencing court in sentencing Nichols to a reasonable term of incarceration.

 Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016