J. S63004/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KARIE DOZIER, : No. 2171 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, June 26, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0003036-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 20, 2016

Karie Dozier appeals from the June 26, 2015 aggregate judgment of 

sentence of 17 to 35 years’ imprisonment imposed after he was found guilty 

of attempted murder, aggravated assault, criminal conspiracy to commit 

murder, possessing instruments of crime (“PIC”), and multiple violations of 

the Uniform Firearms Act (“UFA”).

1

 After careful review, we affirm.

The trial court summarized the relevant facts of this case as follows:

[O]n November 29, 2013, at approximately 

9:45 p.m., [Philadelphia Police Officer Milord Celce] 

received a radio call for a shooting and person with a 

gun at 2603 West Harold Street in Philadelphia. 

Officer Celce, who was approximately four (4) blocks 

away at the time, promptly arrived at the above 

 

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901, 2702, 903, 1102(c), 907, 6105, 6106, and 6108, 

respectively.
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location, where he observed bullet holes in the 

windows and encountered the complainant, 

Enoch Carter. Based on his conversation with 

Mr. Carter, they proceeded to 2642 North 26th Street 

-- literally just around the corner, not even 

30 seconds later -- where they met Highway Patrol 

Officer Reid, and knocked on the door. Appellant’s 

cohort, Co-Defendant Jamar Matthews, who was in a 

wheelchair, answered the door; [a]ppellant was 

seated on a couch directly facing the front door of 

the residence. As soon as Mr. Carter saw him, he 

yelled and pointed to [a]ppellant, [t]hat’s the guy.

Officer Celce placed [a]ppellant on the floor to 

detain him. He lifted the cushion where [a]ppellant 

was sitting and recovered a handgun; [a]ppellant 

was sitting on the gun. Officer Celce escorted 

[a]ppellant outside, where he was positively 

identified by Mr. Carter, and took him into custody. 

Mr. Carter also was transported to Central Detectives 

for an interview, during which Officer Celce learned 

of Co-Defendant Matthews’ involvement; he then 

went back to the residence and placed Matthews 

under arrest at 12:15 a.m. 

. . . . Mr. Carter testified that, prior to the shooting, 

he had lived around the corner from Co-Defendant 

Matthews (“Matthews”) for approximately one and 

one-half (11⁄2) years and was friends with him. 

Mr. Carter used to hang out with Matthews 

frequently, and also helped him with chores such as 

laundry and grocery shopping. Several weeks before 

the shooting, on October 17, 2013, Matthews was 

driving a van (with handicapped hand controls) in 

which Mr. Carter and a female friend of Matthews 

were riding as passengers. Approaching a red light, 

[a]ppellant mistook the accelerator for the brakes, 

and crashed into a building, injuring Mr. Carter and 

the female. Matthews was arrested at the scene for 

his involvement in the crash. Mr. Carter was 

transported to the hospital via ambulance for 

treatment and subsequently required physical 

therapy for his injuries. Several weeks later, 

Mr. Carter commenced a personal injury lawsuit 
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against Matthews, which Matthews took to heart. 

Matthews thereafter had several different individuals 

approach Mr. Carter to persuade him to drop the 

lawsuit, including a younger gentleman earlier on the 

day of the shooting, who proposed a fistfight in front 

of Matthews’ residence. Mr. Carter declined the 

proposal and went home. 

Later that evening, at approximately 

9:40 p.m., [a]ppellant knocked on Mr. Carter’s door. 

Mr. Carter stuck his head out of his second-story 

window to see who it was. Appellant asked him why 

he had a beef with Matthews; Mr. Carter explained 

that he did not have a problem with Matthews, it was 

Matthews who had a problem with him due to the 

lawsuit. After speaking with [a]ppellant for five (5) 

to seven (7) minutes, Matthews approached on his 

wheelchair and parked it next to [a]ppellant. 

Appellant then asked Matthews, “what do you want 

me to do[?]” at which point Matthews said 

“go ahead[.]” Right on cue, [a]ppellant retrieved a 

black handgun, pointed it at Mr. Carter and opened 

fire. Mr. Carter saw the flash from the gun, and a 

bullet went through his window; he fell back into the 

home. As he was falling, [a]ppellant fired several 

more shots at him. Fortunately, none of the bullets 

struck Mr. Carter, who immediately dialed 911 to 

summon police. During the call, he provided a 

physical description of [a]ppellant and reported 

Matthews’[] involvement. A few minutes later, he 

accompanied police to Matthews’ residence, where 

Appellant and the handgun were taken into custody 

following Mr. Carter’s positive identification.

. . . . [Ballistics expert and Philadelphia Police 

Officer Jesus] Cruz testified that he test-fired the 

handgun that [a]ppellant was sitting on and 

compared the fired cartridge casing (“FCC”) with the 

five (5) FCCs recovered in front of Mr. Carter’s 

residence. Based on his analysis, which was 

peer-reviewed, he concluded to a reasonable degree 

of scientific certainty that each of the five (5) FCCs 

recovered at the scene was, in fact, fired from 

[a]ppellant’s handgun. 
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. . . . [Philadelphia Police Detective Michael] Repici 

testified that, on November 29, 2013, he was 

assigned to investigate this matter. At 

approximately 11:35 p.m., he interviewed Mr. Carter 

at Central Detectives. When Mr. Carter described 

Matthews’[] involvement, Detective Repici asked 

Officer Celce -- who was present -- if he knew where 

this guy is? Officer Celce responded, [y]eah, he’s 

still back there, at which point Detective Repici 

directed him to arrest [a]ppellant. Officer Celce 

embarked on this quest a few minutes prior to 

12:00 a.m. 

Detective Repici then went to the crime scene, 

2603 Harold Street, which was being held, or 

secured, by fellow officers. There, he recovered 

under property receipt four (4) FCCs on the 

pavement and one (1) FCC in the street, all in close 

proximity to each other in front of Mr. Carter’s 

residence. He also took photographs of all the 

evidence, including the bullet holes in the windows 

and inside the residence, which he described as the 

photos were displayed to the jury. Detective Repici 

then proceeded to 2642 North 26th Street, where he 

took photographs of the couch and black handgun, 

the latter of which he recovered under property 

receipt. 

Finally, the Commonwealth introduced via 

stipulation: (a) certificates of non-licensure with 

respect to both [a]ppellant and Matthews, 

establishing that neither male was licensed to carry a 

firearm and thus not permitted to carry a firearm in 

Pennsylvania; (b) authenticity of prison phone call 

records between [a]ppellant and Matthews, in which 

they discuss methods to prevent the case from going 

forward -- which recordings were played for, and 

their transcripts displayed to, the jury. 

Trial court opinion, 11/24/15 at 2-5 (citations to notes of testimony, 

footnotes, and some internal quotation marks omitted).
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Appellant was arrested in connection with this incident and charged 

with the aforementioned offenses on March 25, 2014. On April 21, 2015, 

appellant proceeded to a jury trial alongside Matthews. Following a 

three-day trial, the jury found appellant guilty of attempted murder, 

aggravated assault, criminal conspiracy to commit murder, PIC, carrying a 

firearm without a license, and carrying a firearm on public streets or public 

property in Philadelphia. That same day, the trial court found appellant 

guilty of unlawful possession of a firearm. Following the completion of a 

pre-sentence investigation (“PSI”) report, the trial court sentenced appellant 

to 17 to 35 years’ imprisonment on June 26, 2015. On July 6, 2015, 

appellant filed post-sentence motions alleging the verdict was against the 

weight of the evidence and for reconsideration of his sentence. The trial 

court denied appellant’s post-sentence motions on July 8, 2015. This timely 

appeal followed on July 21, 2015.2

On appeal, appellant raises the following issues for our review:

1. Whether the trial court erred by instructing the 

jury on constructive possession where the 

Commonwealth failed to request said 

instruction?

2. Whether the verdicts of guilty on all charges 

w[ere] against the weight of the evidence 

where they were based on inconsistent and 

unreliable eyewitness identification testimony; 

[w]here the testimony regarding the recovery 

of the firearm was conflicting, failing to prove 

constructive possession; and where the 

 

2 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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damage to the complainant’s home could not 

be solely attributed to the charged crime?

3. Whether the evidence presented was 

insufficient to sustain the convictions for 

attempted murder, aggravated assault, and 

criminal conspiracy where the Commonwealth 

failed to prove that he possessed the requisite 

intent or malice?

4. Whether the evidence was insufficient to 

sustain the convictions, beyond a reasonable 

doubt, to the charges of Violation of the 

Uniform Firearms Act and [PIC] where the 

Commonwealth failed to prove appellant 

constructively possessed the recovered 

firearm?

5. Whether the [trial c]ourt erred in imposing an 

excessive and manifestly unreasonable 

sentence by ordering all three (3) [UFA] counts 

to run consecutively to one another and 

consecutively to the conviction for attempted

murder, where said sentences were based on 

factors already accounted for in the prior 

record score . . . and the offense gravity score, 

and in failing to provide reasons justifying its 

decision?

Appellant’s brief at 6 (citations omitted). For the purposes of our review, we 

have elected to address appellant’s claims in a slightly different order than 

presented in his appellate brief. 

Appellant first argues the trial court erred in instructing the jury on 

constructive possession where the Commonwealth failed to request said 

instruction. (Id. at 17.) 

“[A] trial court has broad discretion in phrasing its instructions, and 

may choose its own wording so long as the law is clearly, adequately, and 
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accurately presented to the jury for its consideration.” Commonwealth v. 

Charleston, 94 A.3d 1012, 1021 (Pa.Super. 2014), appeal denied, 104 

A.3d 523 (Pa. 2014) (citation omitted). “A jury charge will be deemed 

erroneous only if the charge as a whole is inadequate, not clear or has a 

tendency to mislead or confuse, rather than clarify, a material issue.” 

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013).

During the course of its deliberations, the jury submitted a question to 

the trial court requesting the definition of possession. (Notes of testimony, 

4/23/15 at 115.) The trial court heard argument on the issue and ultimately 

instructed the jury, over appellant’s objection, on the legal definition of 

possession and its relation to constructive possession. (See id. at 119-

121.) Appellant maintains that “by providing clarification through the 

instruction the [trial] court imposed upon the jury’s role as fact-finder . . .

[and] essentially bolstered the Commonwealth’s case.” (Appellant’s brief at 

17.) We disagree.

Pennsylvania Rule of Criminal Procedure 647(D)3authorizes the trial 

court to provide additional instructions to the jury after the jury has retired 

to consider its verdict. In Commonwealth v. Davalos, 779 A.2d 1190 

(Pa.Super. 2001), appeal denied, 790 A.2d 1013 (Pa. 2001), a panel of 

this court reasoned as follows:

 

3 Rule 647(D) provides, in relevant part, that “[a]fter the jury has retired to 

consider its verdict, additional or correctional instructions may be given by 

the trial judge in the presence of all parties. . . .” Pa.R.Crim.P. 647(D).
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The scope of supplemental instructions given in 

response to a jury’s request rests within the sound 

discretion of the trial judge. There may be situations 

in which a trial judge may decline to answer 

questions put by the jury, but where a jury returns 

on its own motion indicating confusion, the court has 

the duty to give such additional instructions on the 

law as the court may think necessary to clarify the 

jury’s doubt or confusion. 

Id. at 1195 (citations omitted).

Instantly, the record reflects that the trial court properly delivered 

clarifying instructions in response to the jury’s inquiry, as permitted by 

Rule 647(D). Read as a whole, these instructions clearly and accurately set 

forth the applicable law on possession and were neither misleading nor 

confusing to the jury. Accordingly, appellant’s claim of trial court error must 

fail.

We now turn to appellant’s claim that there was insufficient evidence 

to sustain his convictions for attempted murder, aggravated assault, and 

criminal conspiracy to commit murder because the Commonwealth failed to 

prove he had the specific intent to kill or seriously injure Carter. (Appellant’s 

brief at 21.) In support of this assertion, appellant contends that he was 

only intending “to scare Mr. Carter[,]” and “it is more likely that the weapon 

was fired only as a means of intimidation.” (Id. at 23.) 

In reviewing the sufficiency of the evidence, 

we must determine whether the evidence admitted 

at trial and all reasonable inferences drawn 

therefrom, viewed in the light most favorable to the 

Commonwealth as verdict winner, is sufficient to 

prove every element of the offense beyond a 
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reasonable doubt. As an appellate court, we may 

not re-weigh the evidence and substitute our 

judgment for that of the fact-finder. Any question of 

doubt is for the fact-finder unless the evidence is so 

weak and inconclusive that as a matter of law no 

probability of fact can be drawn from the combined 

circumstances. 

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal 

denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).

“A person commits an attempt when with intent to commit a specific 

crime, he does any act which constitutes a substantial step towards the 

commission of the crime.” 18 Pa.C.S.A. § 901(a). A conviction for 

attempted murder requires the Commonwealth to prove beyond a 

reasonable doubt that the defendant “t[ook] a substantial step toward the 

commission of a killing, with the specific intent in mind to commit such an 

act.” Commonwealth v. Tucker, A.3d , 2016 WL 4035602, at *7 

(Pa.Super. July 19, 2016) (citation omitted). It is the element of a willful, 

premeditated, and deliberate intent to kill that distinguishes first-degree 

murder from all other types of criminal homicide. “To convict a defendant of 

first-degree murder, the jury must find that (1) a human being was 

unlawfully killed; (2) the defendant is responsible for the killing; and (3) the 

defendant acted with a specific intent to kill.” Commonwealth v. 

Montalvo, 956 A.2d 926, 932 (Pa. 2008), cert. denied, 556 U.S. 1186 

(2009) (citation omitted); 18 Pa.C.S.A. § 2502. 
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Criminal conspiracy, in turn, requires the Commonwealth to establish 

that appellant “(1) entered into an agreement to commit or aid in an 

unlawful act with another person or persons; (2) with a shared criminal 

intent; and (3) an overt act was done in furtherance of the conspiracy.” 

Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa.Super. 2016).

Additionally, a person will be found guilty of aggravated assault if he 

“attempts to cause serious bodily injury to another, or causes such injury 

intentionally, knowingly or recklessly under circumstances manifesting 

extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). 

The term “serious bodily injury” is defined by statute as “[b]odily injury 

which creates a substantial risk of death or which causes serious, permanent 

disfigurement, or protracted loss or impairment of the function of any bodily 

member or organ.” 18 Pa.C.S.A. § 2301. Where the victim does not sustain 

serious bodily injury, the Commonwealth must prove that the appellant 

acted with specific intent to cause serious bodily injury. Commonwealth v. 

Matthew, 909 A.2d 1254, 1257-1258 (Pa. 2006). 

For aggravated assault purposes, an “attempt” 

is found where an accused who possesses the 

required, specific intent acts in a manner which 

constitutes a substantial step toward perpetrating a 

serious bodily injury upon another. An intent 

ordinarily must be proven through circumstantial 

evidence and inferred from acts, conduct or 

attendant circumstances. 
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Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa.Super. 2013)

(en banc), appeal denied, 78 A.3d 1089 (Pa. 2013) (citations and some 

internal quotation marks omitted).

Viewing the evidence in the light most favorable to the 

Commonwealth, the verdict winner, we find that there was ample evidence 

for the jury to conclude that appellant possessed the requisite intent to kill 

or seriously injure Carter. The testimony presented at trial established that 

appellant’s co-defendant, Matthews, was angry with Carter for filing a 

lawsuit against him and made multiple attempts to persuade him to forgo 

the suit. (Notes of testimony, 4/22/15 at 10-14, 22-23, 97.) On the day of 

the alleged incident, Matthews enlisted appellant to speak with Carter about 

the “beef” he had with Matthews. (Id. at 15-18.) During the course of this 

conversation, Matthews expressly directed appellant to “go ahead,” and 

appellant subsequently fired five gunshots at Carter’s head as he hung out of 

his second-story window. (Id. at 19-20, 68-69.) Thereafter, Officer Celce 

found appellant and Matthews sitting together at Matthews’s residence. 

(Notes of testimony, 4/21/15 at 90-92.)

It is well settled that “[t]he firing of a bullet in the general area in 

which vital organs are located can in and of itself be sufficient to prove 

specific intent to kill beyond a reasonable doubt.” Commonwealth v. 

Manley, 985 A.2d 256, 272 (Pa.Super. 2009), appeal denied, 996 A.2d 

491 (Pa. 2010) (citation omitted). Likewise, the act of firing a gun at 
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someone is sufficient to support a conviction for aggravated assault, even 

when the victim is not actually injured. See Commonwealth v. 

McCalman, 795 A.2d 412, 415-416 (Pa.Super. 2002), appeal denied, 812 

A.2d 1228 (Pa. 2002) (concluding that appellant possessed the intent to 

cause serious bodily injury where he fired a gun in the direction of victims 

and narrowly missed them); Commonwealth v. Galindes, 786 A.2d 1004, 

1012 (Pa.Super. 2002), appeal denied, 803 A.2d 733 (Pa. 2002) (holding 

that the act of firing a gun at victim was sufficient to establish that appellant 

attempted to cause serious bodily injury to the victim, even though the 

victim was not struck by any of the bullets). Based on the foregoing,

appellant’s claim that there was insufficient evidence to sustain his 

convictions for attempted murder, aggravated assault, and criminal 

conspiracy to commit murder must fail.

Appellant next argues there was insufficient evidence to sustain his 

convictions for PIC, unlawful possession of a firearm, carrying a firearm 

without a license, and carrying a firearm on public streets or public property 

in Philadelphia. (Appellant’s brief at 23.) In support of this contention, 

appellant avers that the Commonwealth failed to prove he was in possession 

of the firearm in question. (Id. at 23-24.) For the following reasons, we 

disagree.

Possession of a firearm can be established by showing either actual or 

constructive possession. In situations where it cannot be proven that a 
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suspect had the firearm on his person, the Commonwealth is required to 

prove constructive possession. See Commonwealth v. Hopkins, 67 A.3d 

817, 820 (Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).

Constructive possession is a legal fiction, a pragmatic 

construct to deal with the realities of criminal law 

enforcement. Constructive possession is an 

inference arising from a set of facts that possession 

of the contraband was more likely than not. We 

have defined constructive possession as conscious 

dominion. We subsequently defined conscious 

dominion as the power to control the contraband and 

the intent to exercise that control.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal 

denied, 63 A.3d 1243 (Pa. 2013) (citations and internal quotation marks 

omitted). As with any other element of a crime, the Commonwealth may 

sustain its burden of proving constructive possession by means of wholly 

circumstantial evidence, and the requisite intent may be inferred from 

examination of the totality of the circumstances. Hopkins, 67 A.3d at 820.

Upon review of the evidence in the light most favorable to the 

Commonwealth, we conclude that there was ample evidence for the jury to 

conclude that appellant was guilty of PIC and Sections 6105, 6106, and 6108 

of the UFA. The record belies appellant’s claim that he was not in actual or 

constructive possession of the firearm in question. As discussed, the 

evidence adduced at trial established that appellant fired a handgun at 

Carter multiple times while on 2603 West Harold Street in Philadelphia. 

(Notes of testimony, 4/21/15 at 87-88.) At trial, the Commonwealth 
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introduced a certificate of non-licensure that demonstrated that appellant 

was not licensed to carry a firearm, and appellant had a prior felony 

conviction enumerated in 18 Pa.C.S.A. § 6105(b) that prohibited him from 

possessing a firearm. (Notes of testimony, 4/22/15 at 193; 4/23/15 at 

136.) Officer Celce testified that when he located appellant at Matthews’ 

house minutes after this incident, appellant was on the couch with his hand 

between his legs and a handgun was found directly under the couch cushion 

where he was sitting. (Notes of testimony, 4/21/15 at 91-92.) Additionally, 

Officer Cruz testified to a reasonable degree of scientific certainty as an 

expert in the field of ballistics that the cartridge casings recovered at 

Carter’s residence were fired from the same handgun that appellant was 

found sitting on. (Notes of testimony, 4/22/15 at 117-132.) Based on the 

foregoing, appellant’s claim that there is insufficient evidence to sustain his 

firearms convictions must fail.

We now turn to appellant’s claim that the verdict was against the 

weight of the evidence. (Appellant’s brief at 17.) “An allegation that the 

verdict is against the weight of the evidence is addressed to the discretion of 

the trial court.” Commonwealth v. Galvin, 985 A.2d 783, 793 (Pa. 2009), 

cert. denied, 559 U.S. 1051 (2010) (citation omitted).

[W]here the trial court has ruled on the weight claim 

below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against 

the weight of the evidence. Rather, appellate review 

is limited to whether the trial court palpably abused 

its discretion in ruling on the weight claim.
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Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation 

omitted). 

Because the trial judge has had the opportunity to 

hear and see the evidence presented, an appellate 

court will give the gravest consideration to the 

findings and reasons advanced by the trial judge 

when reviewing a trial court’s determination that the 

verdict is against the weight of the evidence. One of 

the least assailable reasons for granting or denying a 

new trial is the lower court’s conviction that the 

verdict was or was not against the weight of the 

evidence and that a new trial should be granted in 

the interest of justice. 

This does not mean that the exercise of discretion by 

the trial court in granting or denying a motion for a 

new trial based on a challenge to the weight of the 

evidence is unfettered. In describing the limits of a 

trial court’s discretion, we have explained[,] [t]he 

term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate 

conclusion within the framework of the law, and is 

not exercised for the purpose of giving effect to the 

will of the judge. Discretion must be exercised on 

the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. 

Discretion is abused where the course pursued 

represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or 

where the law is not applied or where the record 

shows that the action is a result of partiality, 

prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and 

emphasis omitted).

Instantly, appellant contends the verdict is against the weight of the 

evidence because Carter’s identification of appellant was unreliable; 
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Officer Celce’s testimony concerning the recovery of the firearm was 

inconsistent; and the physical evidence found at Carter’s home could not be 

attributed solely to the charged crime. (Appellant’s brief at 18-21.)

Upon review, we discern no abuse of discretion on the part of the trial 

court in rejecting appellant’s weight claim. “The 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.” Commonwealth v. 

Caban, 60 A.3d 120, 132 (Pa.Super. 2012), appeal denied, 79 A.3d 1097 

(Pa. 2013) (citation omitted). Here, the jury evidently found the 

Commonwealth’s witnesses credible and elected not to believe appellant’s 

version of the events. We are precluded from reweighing the evidence and 

substituting our judgment for that of the fact-finder. Clay, 64 A.3d at 1055. 

Accordingly, appellant’s weight claim must fail.

In his final claim, appellant challenges the discretionary aspects of his 

sentence. (Appellant’s brief at 25-28.) Challenges to the discretionary 

aspects of sentencing do not entitle a petitioner to review as of right. See 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Rather, 

an appellant challenging the discretionary aspects of his sentence must 

invoke this court’s jurisdiction by satisfying the following four-part test:

(1) whether the appeal is timely; (2) whether 

[a]ppellant preserved his issue; (3) whether 

[a]ppellant’s brief includes a concise statement of 

the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and 

(4) whether the concise statement raises a 
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substantial question that the sentence is appropriate 

under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

Instantly, the record reveals that appellant has filed a timely notice of 

appeal and has preserved his issue in a post-sentence motion. Appellant 

has also included a statement in his brief that comports with the 

requirements of Pa.R.A.P. 2119(f). (See appellant’s brief at 15-16.) 

Accordingly, we must determine whether appellant has raised a substantial 

question.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d 

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) 

(citation omitted). “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. Glass, 50 A.3d 720, 727 (Pa.Super. 2012), 

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

Appellant first contends his sentence was “excessive and manifestly 

unreasonable” because the trial court elected to impose consecutive 

sentences for his UFA violations and the attempted murder charge. 

(Appellant’s brief at 25.) 
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The “[l]ong standing precedent of this [c]ourt recognizes that 

42 Pa.C.S.A. [§] 9721 affords the sentencing court discretion to impose its 

sentence concurrently or consecutively to other sentences being imposed at 

the same time or to sentences already imposed.” Commonwealth v. 

Marts, 889 A.2d 608, 612 (Pa.Super. 2005). Generally, the imposition of 

consecutive sentences does not raise a substantial question. See 

Commonwealth v. Pass, 914 A.2d 442, 446 (Pa.Super. 2006) (stating that 

a challenge to the trial court’s discretion to impose a consecutive sentence 

does not raise a substantial question). Such a claim 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. Dodge, 77 A.3d 

1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014) 

(citation omitted). This case simply does not present “extreme 

circumstances” and appellant’s sentence is not unduly harsh considering the 

criminal conduct that occurred in the case, the nature of the crime, and the 

length of imprisonment. Accordingly, the trial court’s decision to impose 

consecutive, rather than concurrent, sentences does not present a 

substantial question for our review.

However, to the extent appellant argues in his Rule 2119(f) statement 

that, “[t]here is no indication that the [trial] court considered . . . appellant’s 

individual rehabilitative needs” or any of the other relevant factors in Section 
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9721(b), we find this claim presents a substantial question for our review. 

(See appellant’s brief at 15-16.) This court has recognized that an assertion 

that the trial court failed to account for appellant’s rehabilitative needs was a 

substantial question suitable for appellate review. Commonwealth v. 

Baker, 72 A.3d 652, 662 (Pa.Super. 2013), appeal denied, 86 A.3d 231 

(Pa. 2014). Likewise, appellant’s contention the trial court considered a 

number of “impermissible factors” in fashioning his sentence, including 

“focusing primarily on his prior criminal record[,]” also raises a substantial 

question. See Allen, 24 A.3d at 1064-1065 (stating, “a claim that a 

sentence is excessive because the trial court relied on an impermissible 

factor raises a substantial question.” (citation omitted)). Accordingly, we 

proceed to consider the merits of these discretionary aspects of sentencing

claims.

When reviewing a challenge to the discretionary aspects of sentencing, 

we determine whether the trial court has abused its discretion.

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 [a]ppellant 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. 

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal 

denied, 117 A.3d 297 (Pa. 2015) (citation omitted). “[This Court must 
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accord the sentencing court great weight as it is in [the] best position to 

view the defendant’s character, displays of remorse, defiance or indifference, 

and the overall effect and nature of the crime.” Commonwealth v. 

Ventura, 975 A.2d 1128, 1134 (Pa.Super. 2009), appeal denied, 987 A.2d 

161 (Pa. 2009) (citation omitted).

Herein, the record reveals that the trial court considered and weighed 

numerous factors in fashioning appellant’s sentence. At the June 26, 2015 

sentencing hearing, the trial court addressed appellant’s difficult childhood 

and upbringing, his educational background and prior employment, his 

significant history of mental illness, and the fact that he made a conscious 

choice to “show[] up to somebody else’s fight with a gun.” (Notes of 

testimony, 6/26/15 at 11-12, 14.) The trial court also considered appellant’s 

extensive criminal history, noting that, as an adult, appellant has 13 arrests, 

11 convictions, 8 commitments, and 2 violations of probation. (Id. at 

12-13.) Additionally, the trial court heard testimony from appellant at the 

hearing and was aware of the fact that appellant had previously been the 

victim of a gunshot and had essentially been abandoned by his mother until 

he was eight years old. (Id. at 8-11.) Although the record reflects that the 

trial court did not specifically state at the sentencing hearing that it 

considered appellant’s rehabilitative needs, the trial court was in possession 

of a PSI report. Where the trial court has the benefit of a PSI report, as is 

the case here, “we shall . . . presume that the sentencing judge was aware 
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of relevant information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors.” 

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014), 

appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted). Accordingly, we 

find no abuse of the trial court’s discretion and appellant’s challenge to the 

discretionary aspects of his sentence must fail.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2016