J. S01022/17

2017 PA Super 209

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BARRY G. JOHNSON-DANIELS, :

:

Appellant : No. 919 MDA 2016

Appeal from the Judgment of Sentence February 8, 2016

In the Court of Common Pleas of Dauphin County 

Criminal Division at No(s): CP-22-CR-0004222-2014

 

BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

OPINION BY DUBOW, J.: FILED JULY 05, 2017

Appellant Barry G. Johnson-Daniels seeks review of the Judgment of 

Sentence entered by the Court of Common Pleas after the entry of 

Appellant’s guilty plea. He challenges the court’s refusal to grant his presentence Motion to withdraw his guilty plea, and the discretionary aspects of 

his sentence. After careful review, we affirm. 

The facts, as gleaned from the certified record, are as follows. Police 

officers in Harrisburg received a tip from Crime Stoppers that Appellant was 

selling drugs on a street in an area known for drug trafficking. On December 

24, 2013, a confidential informant (“CI”) working with the Harrisburg Police 

Department purchased crack cocaine from Appellant at a carwash on Derry 

Street at a planned meeting. Police officers immediately arrested Appellant 
J. S01022/17

- 2 -

after a struggle.1 Police officers recovered a bag containing 35 grams of 

cocaine laying under Appellant’s body once they subdued him. They also 

found cash from Appellant’s person and, pursuant to a search warrant for 

Appellant’s vehicle, found heroin packaged in 59 individual packets, $4,000 

in cash, and five cell phones, including one with the phone number the CI 

used to set up the drug purchase. 

Appellant was charged with two counts of Possession with Intent to 

Deliver a controlled substance (“PWID”) and related drug offenses, as well 

as Escape, Flight to Avoid Apprehension, Resisting Arrest, and two summary 

driving offenses, for a total of 11 counts. Appellant remained free on bail. 

See Notes of Testimony (“N.T.”) Plea, 12/8/15, at 15-18.

On December 8, 2015, just prior to picking a jury, Appellant entered 

an open guilty plea to all charges. At that hearing, Appellant underwent an 

extensive waiver colloquy. Appellant’s attorney stated that he had apprised 

Appellant of the elements of the crimes charged. Appellant agreed that he 

“is aware of the elements of the crimes charged, the burden of production 

and persuasion that the Government has the duty of if it were to come to 

trial, and then also what the statutory maximums are of each one of the 

 

1 The struggle ensued after police officers boxed in Appellant’s car. When he 

refused to exit the vehicle, police officers smashed a window and removed 

him from the car. He broke free and ran approximately 15 feet until he was 

tackled by police. He refused demands to provide his hands to police so 

they could cuff him. Ultimately, police officers struck Appellant several 

times and used pepper spray. Trial Court Op., dated 5/9/16, at 2 

(unpaginated). 
J. S01022/17

- 3 -

offenses.” Id. at 7-8. In addition, the prosecutor provided a detailed 

recitation of the facts underlying the charged crimes, the elements of each 

of the crimes, and the possible sentence for each crime. Appellant 

unequivocally responded that he understood each crime and agreed that he 

was pleading guilty because he was “in fact, guilty of them.” Id. at 9-22, 

29. The trial court accepted the guilty pleas, ordered a pre-sentence 

investigation, and scheduled sentencing for January 26, 2016. Id. at 22, 

29. Appellant remained free on bail, and on January 21, 2016, filed a PreSentence Memorandum in Mitigation.

On January 26, 2016, at the sentencing hearing, the Commonwealth 

requested a sentence of at least four years’ incarceration.2 Relevant to this 

appeal, the following exchange occurred during the prosecutor’s argument:

[Prosecutor]: The defendant is an individual who profits from 

the drug trade and he profits from addiction. As a prosecutor 

who’s been doing this for a long time, we look at these cases, 

and you see a name and you see a deal and you see an amount 

of weight that was sold and you really don’t think much further 

than that.

However, it is important to note that all these drug indications 

[sic] involve numerous victims, when you think about it: people 

who are addicted to cocaine, people who are addicted to heroin. 

These individuals lose their jobs. They go out on the street, and 

they need money to support their habit. In order to support 

their habit, they rob. They steal. They steal from friends. They 

steal from family. They commit burglaries. They commit 

robberies out on the street. And the entire public is affected by 

this.

 

2 The Commonwealth withdrew the Flight to Avoid Apprehension charge at 

count 8.
J. S01022/17

- 4 -

The defendant profits from that. He makes money off of that to 

buy things, to go on trips. 

And I noticed in his presentence investigation, that – his 

[mitigation] memorandum that he sent, I believe there was a 

picture of him and his five children and pictures of him when he 

was in kindergarten and school, growing up. But as recently as 

September, if you go on the defendant’s Facebook page, he’s in 

Las Vegas, having a good time.

[Appellant’s Attorney]: You know what? I’m going to have to 

object to a large part of – I understand that there’s allocution, 

and the Commonwealth has a right of it, but a couple of different 

things. I was gonna let it go.

Number one, the relevance of the trail of tears type of 

information when there’s been absolutely nothing linked to this 

particular defendant. That is wild speculation, and I’d ask the 

Court to acknowledge the fact that drugs are something that 

destroys our community, but specific effects have not been 

traced back to [Appellant].

Number two is, as far as being in Las Vegas or anything on his 

Facebook, I note that there’s nothing here that’s presented as 

far as anything that’s authenticated, nothing here in terms of the 

evidence. And so I’d ask the Court to strike that, also, from its 

consideration as well. There’s a way to prove these things up, 

and they were not done.

[Prosecutor]: And I’m not worried about, necessarily, the Las 

Vegas thing.

However, it is apparent that the defendant is someone who 

profits from the drug trade, makes money. He is not a person 

who uses and sells to support his habit. He profits from this, 

and he makes money to buy things. And with that – and that is 

the reason I am requesting a sentence of no less than four years 

in State prison.

He’s had numerous PWIs. He’s gotten Intermediate Punishment. 

He went to County prison. It is time to send [Appellant] to State 

prison.
J. S01022/17

- 5 -

[Appellant’s Attorney]: If I may, Your Honor, very quickly.

At this time, Your Honor, based upon not only the comments 

that we had sidebar[3] and also with respect to the prosecutor’s 

allocution, we’d like to withdraw our guilty plea.

The Court: I don’t know on what grounds that would be. I 

already have the presentence. I have your [Mitigation] 

[M]emorandum.

[Appellant’s Attorney]: It’s –

The Court: The sentence is based on his plea, the background, 

and the information that I have pertaining to the case. [The 

prosecutor] gave his comments. Regardless of his comment, I 

am going to proceed with sentencing.

[Appellant’s Attorney]: Just so we are clear here, this is prior 

to sentencing. He’s asking to withdraw his guilty plea, which is 

liberally allowed under the Pennsylvania Supreme Court rulings, 

and that the Court needs to show a manifest abuse of justice in 

order for it to be able to do that. And I don’t see that on this 

record.

I just want to be clear to the Court that our intention here is to 

withdraw his guilty plea prior to sentencing, and I think that if 

the Court goes forward and sentences him when he asserts that 

he’s factually innocent – which he’s prepare to do – then it’s 

going to be a very difficult burden for the court to overcome.

The Court: This is the second time that [Appellant] has gone 

down this lane.

[Appellant’s Attorney]: And you know what happened on the 

second one? He got found not guilty.

The Court: That’s correct.

[Appellant’s Attorney]: Okay. So –

 

3 Appellant did not provide any transcriptions of sidebar and in-chambers 

meetings that occurred in this case.
J. S01022/17

- 6 -

The Court: All right. I’ll tell you what we’re going to do. We’re 

going to allow him to withdraw his plea.

I will raise bail to $150,000. We will set this for February 8th for 

trial. 

[Discussion occurred between the Court and Appellant’s 

Attorney regarding the increase in bail and Appellant’s 

intention to appeal the increase of bail.]

[Prosecutor]: And it’s the Commonwealth’s position that bail 

should – he shouldn’t even have bail. While he was out on bail 

on two other cases, he violated this act. 

So for him to be in jail at this time is not only proper; it is the 

correct thing to do at this point. . . . what he’s doing right now 

is playing games with the system.

***

This case has been around since at least, the first listing, August 

of 2014. The Commonwealth was prepared to try this case in 

early December. Our witnesses were ready, willing, and able. I 

was prepared as well.

Now we come here at sentencing after Christmas, after the 

holidays, and he comes in here, because the prosecutor doesn’t 

say what he likes and doesn’t appreciate what I say about him –

which is the truth – and now he wants to withdraw his plea.

He’s playing games with the system. That’s what he’s doin’. 

N.T. Sentencing, 1/26/16, at 7-11 (some paragraph breaks omitted).

The next day, on January 27, 2016, the Commonwealth filed a “Motion 

for Reconsideration of Defendant Being Permitted to Withdraw Guilty Plea,” 

requesting the court to rescind its Order granting Appellant’s Motion to 

Withdraw Guilty Plea based on Commonwealth v. Carrasquillo, 115 A.3d 

1284 (Pa. 2015), and hold an immediate sentencing hearing. 
J. S01022/17

- 7 -

The court held a hearing on the Commonwealth’s Motion, during which 

Appellant’s counsel made the following statement:

Okay. And Your Honor, with respect to the Commonwealth’s 

position in their petition to not allow him to withdraw his guilty 

plea, I think that there is an argument to be made in this 

particular case that differentiates the case before that’s binding 

precedent. 

I admit that it’s fully binding precedent from the Superior 

Court[4] that the Court must follow; however, factually different 

in this case is, the Court did allow [Appellant] to withdraw his 

plea. Is that a distinction without a difference? I don’t know.

* * *

... If the binding precedent weren’t there and the old law existed 

then the blanket assertion of innocence would be enough to 

allow him to withdraw his guilty plea. But with this new – with 

this new Superior Court ruling, that changes the game, for lack 

of a better way of putting it. 

So I acknowledge that case law. And in terms of my argument, 

my argument remains that which the Court can consider, which 

is his blanket innocence claims. 

N.T. Hearing, 2/8/16, at 3-5.

The court granted the Commonwealth’s Motion and informed Appellant 

that his “plea is still valid and ... on the record and we’re going to proceed to 

 

4 The only case raised in the Commonwealth’s Motion for Reconsideration, 

which defense counsel refers to as a “petition”, was the Pennsylvania 

Supreme Court’s case of Commonwealth v. Carrasquillo, 115 A.3d 1284 

(Pa. 2015). Accordingly, it appears that counsel misspoke when he referred 

to a Superior Court case. 
J. S01022/17

- 8 -

sentencing.” Id. at 6.5 The court then sentenced Appellant to an aggregate 

term of four-and-a-half to nine years’ incarceration,6and instructed 

Appellant’s attorney to submit a memorandum with respect to credit for time 

served. 

On February 16, 2016, Appellant filed a Post-Sentence Motion seeking 

credit for time served, RRRI eligibility, and a modification of his sentence 

based on a claim of excessiveness. On May 9, 2016, in a written Opinion, 

the court denied the Motion for downward modification, but granted 

Appellant’s request for RRRI eligibility at 5/6’s of his sentence (i.e., at 45 

months) and gave him credit for time served.

Appellant timely appealed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925. 

Appellant presents the following issues for review:

 

5 The Commonwealth withdrew the Resisting Arrest and Escape charges 

(counts 7 and 9).

6 Appellant was sentenced as follows: Count 1, Unlawful Delivery of a 

Controlled Substance - one to two years; Count 2, Possession With Intent to 

Deliver a Controlled Substance (“PWID”) - two and a half to five years; 

Count 3, PWID - two to four years; Count 4, Unlawful Possession of Drug 

Paraphernalia, and Count 5, Unlawful Delivery of Drug Paraphernalia -

twelve months of state supervision; Count 6, Criminal Use of a 

Communication Facility - one to two years. Count 1 and count 6 were 

ordered to run concurrent to one another, and concurrent to Counts 2 and 3, 

2 and 3 to run consecutive to one another; Counts 4 and 5 consecutive to 

each other and consecutive to Counts 2 and 3, for an aggregate of four-anda-half to nine years in state incarceration with a consecutive term of 24 

months’ state supervision. 
J. S01022/17

- 9 -

1. Whether the trial court erred in re-instating [Appellant’s] 

guilty plea when the trial court found a fair and just reason 

for the withdrawal of the guilty plea at the time the court 

granted his request to withdraw his plea?

2. Whether the trial court excessively sentenced [Appellant] to 

41⁄2 to 9 years in a state correctional institute when 

[Appellant’s] individual circumstances suggest a mitigated 

range sentence would appropriately protect the public and 

meet the goals of rehabilitation.

Appellant’s Brief at 5.

Appellant first avers that the trial court should have allowed him to 

withdraw his guilty plea because he “provided a fair and just reason for the 

withdrawal: the irrelevant and prejudicial comments by the Commonwealth 

and his factual innocence.” Appellant’s Brief at 10.7 

The standard of review that we employ in challenges to a trial court's 

decision regarding a presentence motion to withdraw a guilty plea is wellsettled. “A trial court's decision regarding whether to permit a guilty plea to 

be withdrawn should not be upset absent an abuse of discretion.” 

Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super. 2010). 

Pa.R.Crim.P. 591(A) provides that, in its discretion, a trial court may 

grant a motion for the withdrawal of a nolo contendere or guilty plea at any 

 

7 Appellant also argues that the trial court’s “‘clawing back’ the guilty plea 

cannot be allowed based upon this particular record.” Appellant’s Brief at 

16. Appellant has not provided any argument or case law to support his 

implication that the trial court was prohibited from reconsidering its prior 

day’s ruling on motion from the Commonwealth.
J. S01022/17

- 10 -

time before the imposition of sentence. The Pennsylvania Supreme Court 

has interpreted the rule as follows:

There is no absolute right to withdraw a guilty plea; trial courts 

have discretion in determining whether a withdrawal request will 

be granted; such discretion is to be administered liberally in 

favor of the accused; and any demonstration by a defendant of a 

fair-and-just reason will suffice to support a grant, unless 

withdrawal would work substantial prejudice to the 

Commonwealth.

Carrasquillo, 115 A.3d at 1291-92 (citing Commonwealth v. Forbes, 299 

A.2d 268 (Pa. 1973)). 

Although “discretion is to be administered liberally in favor of the 

accused,” our Supreme Court has rejected the application of a bright-line 

rule that “prohibited, as a matter of law, trial courts from assessing the 

credibility of an assertion of innocence made in the context of a presentence 

motion to withdraw a guilty plea.” Carrasquillo, supra at 1293 (Stevens, 

J., concurring). In affirming the trial court’s refusal to allow the defendant 

to withdraw his plea, the Carrasquillo majority observed,

[T]he proper inquiry on consideration of such a withdrawal 

motion is whether the accused has made some colorable 

demonstration, under the circumstances, such that permitting 

withdrawal of the plea would promote fairness and justice. The 

policy of liberality remains extant but has its limits, consistent 

with the affordance of a degree of discretion to the common 

pleas courts.

Id. at 1292. 

In Carrasquillo, the Court noted that the determination of whether 

there is a “fair and just reason” to permit the pre-sentence withdrawal 
J. S01022/17

- 11 -

request should be based on the totality of the circumstances attendant at 

the time of the request, including the timing of the assertion of innocence, 

the statements made by the defendant in association with his declaration of 

innocence, and the plausibility of the defendant’s statements in light of the 

evidentiary proffer made by the Commonwealth at the plea hearing. See id. 

at 1286, 1292-93.

In Commonwealth v. Blango, 150 A.3d 45 (Pa.Super. 2016), this 

Court applied Carrasquillo and concluded that the trial court had not 

abused its discretion in declining to permit the defendant to withdraw his 

guilty plea. We noted that, in light of the defendant’s trial testimony against 

his co-defendants admitting his role in the offense and the timing of his 

motion, which was made immediately after learning of the Commonwealth’s 

sentencing recommendation, the defendant’s assertion of innocence was 

“implausible” and “instead was ‘an attempt to manipulate the system.” 

Blango, 150 A.3d at 48, 52. 

Most recently, in Commonwealth v. Islas, __ A.3d __, 2017 PA 

Super 43, 2017 WL 727254 (Pa. Super. filed Feb. 24, 2017), this Court 

applied Carrasquillo and concluded that the trial court had erred in denying 

the defendant’s pre-sentence motion to withdraw his guilty plea. We 

concluded that, unlike the defendants in Carrasquillo and Blango, Islas’ 

assertion of innocence was “not ‘mere, bare, or non-colorable,’ but instead 

was ‘at least plausible.’” Id. at *5. We noted that Islas had entered his 
J. S01022/17

- 12 -

plea three days before trial was set to begin and before a jury had been 

selected. He had moved to withdraw his plea over one month after its entry, 

when new counsel entered his appearance, and almost two months before 

sentencing. Id. We also observed that Islas had maintained his innocence 

from the beginning, even though we noted further that a conclusion that a 

claim of innocence is likely or unlikely to succeed at trial is “irrelevant” to the 

consideration of whether the trial court properly denied the motion to 

withdraw. Id. 

Although each case presents its own unique set of facts, the instant 

case is more akin to Blango and Carrasquillo than to Islas. Unlike Islas, 

the timing of Appellant’s plea and of his request to withdraw his plea support 

a conclusion that the trial court did not abuse its discretion in denying 

Appellant’s motion. 

Despite the case being initially listed in 2014, Appellant entered his 

guilty plea on the day trial was set to begin in December 2015. Seven 

weeks after the entry of the guilty plea, on the day of sentencing, the 

Commonwealth made a passionate argument regarding Appellant’s crimes 

before informing the court the sentence it was recommending. It was only 

after hearing the recommended sentence that Appellant’s counsel requested 

the withdrawal of the plea. See N.T., 12/26/16, at 7-8. Thus, unlike Islas, 

the timing of Appellant’s request to withdraw his plea, i.e., the day of 
J. S01022/17

- 13 -

sentencing after hearing the recommended sentence, lends support to the 

trial court’s decision to deny the withdrawal motion. 

We also note that Appellant pled guilty right before the parties were to 

select the jurors and begin the trial, and then withdrew the plea seven 

weeks later when the threat of an imminent trial had passed. It is 

reasonable to assume that he was pleading guilty and withdrawing the plea 

as a means to manipulate the court proceedings. 

In addition, Appellant’s assertion of innocence is lacking in plausibility. 

Appellant’s discomfort with hearing the prosecutor speak about the general 

negative effects of drug dealing on the public does not equate to a fair and 

just reason for the pre-sentence withdrawal of a guilty plea. Moreover, 

Appellant’s observation that he had been allowed to withdraw a plea in a 

prior case that then resulted in a jury finding him not guilty does not provide 

a “colorable demonstration, under the circumstances, such that permitting 

withdrawal of the plea would promote fairness and justice” in this case. 

Carrasquillo, supra at 1292. 

The evidentiary proffer made by the Commonwealth at the plea 

hearing was extensive and undisputed. We, thus, conclude that in light of 

the timing, implausibility and evidentiary proffer, the trial court properly 

“assess[ed] the credibility of [Appellant’s] assertion of innocence,” and did 
J. S01022/17

- 14 -

not abuse its discretion in refusing to allow Appellant to withdraw his guilty 

plea.8 Id. at 1293.

Appellant next challenges the length of the term of his incarceration, 

averring that it is excessive in light of the mitigating factors he presented to 

the court and his rehabilitative needs. He also avers that the trial court 

failed to put its reasons for the sentence on the record at the time of 

sentencing, as required by 42 Pa.C.S. § 9721(b). 

Our standard of review in assessing whether a trial court has erred in 

fashioning a sentence is well settled.

[T]he proper standard of review when considering whether to 

affirm the sentencing court's determination is an abuse of 

discretion. [A]n abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not have abused its 

discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will. ... An abuse of discretion 

may not be found merely because an appellate court might have 

reached a different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or 

such lack of support so as to be clearly erroneous.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012), 

quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). 

 

8 Appellant avers that the Commonwealth has not shown “substantial 

prejudice” so as to support the court’s decision to deny the withdrawal 

request. In light of Appellant’s failure to demonstrate a fair and just reason 

to support the withdrawal of his plea, we need not examine the prejudice 

suffered by the Commonwealth. See Carrasquillo, supra at 1291-92 

(noting that “any demonstration by a defendant of a fair and just reason will 

suffice to support a grant, unless withdrawal would work substantial 

prejudice to the Commonwealth”). 
J. S01022/17

- 15 -

42 Pa.C.S. § 9721 provides, in relevant part:

(a) General rule.--In determining the sentence to be imposed 

the court shall, except as provided in subsection (a.1), 

consider and select one or more of the following 

alternatives, and may impose them consecutively or 

concurrently:

(1) An order of probation.

(2) A determination of guilt without further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine.

(6) County intermediate punishment.

(7) State intermediate punishment.

* * *

(b) General standards.--In selecting from the alternatives set 

forth in subsection (a), the court shall follow the general 

principle that the sentence imposed should call for confinement 

that is consistent with the protection of the public, the gravity of 

the offense as it relates to the impact on the life of the victim 

and on the community, and the rehabilitative needs of the 

defendant. The court shall also consider any guidelines for 

sentencing and resentencing adopted by the Pennsylvania 

Commission on Sentencing and taking effect under section 2155 

(relating to publication of guidelines for sentencing, resentencing 

and parole and recommitment ranges following revocation).1In 

every case in which the court imposes a sentence for a felony or 

misdemeanor, modifies a sentence, resentences an offender 

following revocation of probation, county intermediate 

punishment or State intermediate punishment or resentences 

following remand, the court shall make as a part of the record, 

and disclose in open court at the time of sentencing, a statement 

of the reason or reasons for the sentence imposed.

* * * *

42 Pa. C.S. § 9721(a), (b).

The court “is not required to parrot the words of the Sentencing Code, 

stating every factor that must be considered under Section 9721(b), 
J. S01022/17

- 16 -

[however,] the record as a whole must reflect due consideration by the court 

of the statutory considerations” at the time of sentencing. Commonwealth 

v. Coulverson, 34 A.3d 135, 145 (Pa. Super. 2011) (citation omitted). A 

sentencing court’s indication that it has been informed by a presentence 

report can satisfy the requirement of placing reasons for imposing the 

sentence on the record. Commonwealth v. Burns, 765 A.2d 1144 (Pa. 

Super. 2000). 

In addition, “[o]ur Supreme Court has determined that where the trial 

court is informed by a pre-sentence report, it is presumed that the court is 

aware of all appropriate sentencing factors and considerations, 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), citing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988).

In the instant case, the court acknowledged on January 26, 2016, at 

the sentencing hearing that it had the PSI report. Thirteen days later, after 

the reinstatement of Appellant’s guilty plea, the court continued the 

sentencing proceeding that had begun on January 26, 2016, with Appellant’s 

counsel requesting that the PSI be “incorporated” and acknowledging that 

the judge had read both the PSI report and Appellant’s presentence 

mitigation memorandum. See N.T., 2/8/16, at 8. We conclude that 

because the trial court acknowledged the PSI report at the time of 
J. S01022/17

- 17 -

sentencing, the court satisfied the requirement for placing the reasons on 

the record in accordance with Burns, Ventura, and Devers, supra. 

Appellant next avers that his aggregate sentence of 41⁄2 to 9 years’ 

incarceration is excessive. Appellant concedes that his sentence for each 

conviction falls within the guidelines provided for the individual crimes, but 

baldly avers that “his sentence violates several specific goals of the 

Sentencing Code, specifically, that his sentence does not comport with the 

protection of the public, gravity of the offense, and his rehabilitative needs.” 

Appellant’s Brief at 14, 28. He argues that a “sentence within the highest 

standard range (27-33 months), with all other sentences running 

concurrent, would protect the public, equate with the gravity of the offense 

in relation to the impact on the community, and provide for [Appellant’s] 

rehabilitative needs.” Id. at 30-31.9 

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

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932, 

935 (Pa. Super. 2013) (citation omitted). Rather, Appellant must first meet 

 

9 As noted above in footnote 6, the sentences imposed on Count 1 and count 

6 were ordered to run concurrent to one another, and concurrent to Counts 

2 and 3, and sentences on Courts 2 and 3 were to run consecutive to one 

another; sentences imposed on Counts 4 and 5 were to run consecutive to 

each other and consecutive to Counts 2 and 3, for an aggregate of 41⁄2 to 9 

years in state incarceration, with a consecutive term of 24 months’ state 

supervision. Appellant is RRRI eligible after serving 45 months’ 

incarceration. 
J. S01022/17

- 18 -

his burden of satisfying the following four elements before we will review the 

discretionary aspect of a sentence:

(1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief 

has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006)).

Here, Appellant met each of the above elements by filing a timely 

Notice of Appeal, properly preserving the issue, and including in his Brief a 

Statement of Reasons Relied Upon for Allowance of Appeal pursuant to 

Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). Appellant’s assertion in his 

Rule 2119(f) statement that his aggregate sentence “does not comport with 

the protection of the public, gravity of the offense, and his rehabilitative 

needs,” raises a substantial question. Appellant’s Brief at 14. See

Provenzano, supra, at 154 (stating “we cannot look beyond the statement 

of questions presented and the prefatory 2119(f) statement to determine 

whether a substantial question exists.”); Commonwealth v. Raven, 97 

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

claim—in conjunction with an assertion that the court failed to consider 

mitigating factors—raises a substantial question.” (citing Commonwealth v. 

Mouzon, 812 A.2d 617, 627 (Pa. 2002)); Commonwealth v. Caldwell, 
J. S01022/17

- 19 -

117 A.3d 763, 770 (Pa. Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 

2015) (concluding that an “[a]ppellant's challenge to the imposition of his 

consecutive sentences as unduly excessive, together with his claim that the 

court failed to consider his rehabilitative needs upon fashioning its sentence, 

presents a substantial question.”).10

Accordingly, we will address the discretionary aspects of the sentence 

raised in this appeal.

In reviewing the discretionary aspects of a sentence, we are guided by 

the following standard:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

Caldwell, supra, at 770 (citation omitted).

With respect to the imposition of consecutive versus concurrent 

sentences, “[l]ong standing precedent of this Court recognizes that 42 

Pa.C.S. section 9721 affords the sentencing court discretion to impose its 

 

10 Cf. Commonwealth v. Williams, 562 A.2d 1385, 1387-88 (Pa. Super. 

1989) (concluding that where an appellant “has failed to include in [the Rule 

2119(f)] statement any specific, articulable reasons why her sentence raises 

doubts that the sentencing scheme as a whole has been compromised, ... 

and, in effect, [the] appellant asks this Court to substitute its judgment 

regarding an appropriate sentence for that of [the sentencing judge], such a 

statement does not raise a substantial question that the sentence imposed 

was in fact inappropriate.”)
J. S01022/17

- 20 -

sentence concurrently or consecutively to other sentences being imposed at 

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

Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010) (citation 

omitted). See also Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. 

Super. 1995) (explaining that a defendant is not entitled to a “volume 

discount” for his or her crimes).

Here, the sentencing court made the following observations in support 

of its sentence:

. . . Defendant has seen firsthand what crack cocaine can do to 

families. Defendant’s father began using crack cocaine when 

Defendant was 8 years old and he became abusive toward the 

family. Starting at age 14, Defendant began accumulating 

adjudications and convictions for possessing with intent to 

deliver various drugs.[11]

On the day he was arrested, Defendant had close to $8500 in 

drugs and cash. As the Commonwealth indicated, he profits 

from the drug trade. . . . Defendant is a victim of a 

multigenerational cycle of growing up without a father, a mother 

in and out of jail[,] and drugs present in his life. Somehow, in 

spite of it all, it appears he has managed to not become a drug 

addict himself so his children as least do not have to bear the 

burden of a drug addicted, abusive father.

However, Defendant’s choices have led him to drug dealing and 

for this he must be punished. His sentence reflects the crimes 

he committed and the sentence on each count is within the 

standard guidelines. In fact, the statutory limit on possession 

with intent to deliver is 120-240 months. Defendant was 

sentenced to 30 to 60 months on Count 2 and 24 to 48 months 

 

11 Appellant was born 11/10/82, and was 31 years old when charged with 

the instant offenses.
J. S01022/17

- 21 -

on Count 3, both of which are well below the statutory maximum 

and within the standard range guideline. 

* * *

The Court considered the statements from both the 

Commonwealth and Defense Counsel. We reviewed the presentence investigation. All of the evidence indicates that while 

Defendant has not been convicted of violent crimes, he has been 

a source of hard drugs in this community which he knows all too 

well, wreak havoc upon those addicted to drugs and their 

families who suffer the consequences of drug addiction.

Trial Ct. Op., dated 5/9/16, at 3-4 (unpaginated).12

Although Appellant avers that “his sentence does not comport with the 

protection of the public, gravity of the offense, and his rehabilitative needs,” 

he has not provided any reference to the record or to the guidelines to 

support his assertion that the court abused its discretion. As noted, 

Appellant had been selling drugs since he was 14 years old, and despite five 

prior convictions for PWID, he continued to disregard the law by selling 

cocaine and heroin. His contention that his aggregate sentence is excessive 

because “there were no specific victims identified or alleged in this case, 

indicating no need to protect any specific individual,” demonstrates that 

Appellant fails to comprehend the gravity of his offenses and the impact that 

his vocation as a drug dealer has on communities and families. His 

reasoning does not support his averment that the court abused its discretion 

in imposing consecutive rather than concurrent sentences. Appellant 

 

12 The court denied Appellant’s request for a reduction in sentence; however, 

it granted his request for RRRI eligibility and credit for time served.
J. S01022/17

- 22 -

committed numerous crimes of a serious nature for which he is not entitled 

to a “volume discount.” Hoag, supra, at 1114.

Moreover, as indicated in its Memorandum Opinion, the sentencing 

court did consider Appellant’s circumstances before imposing sentences that 

fall, as Appellant concedes, within the standard range of the guidelines. We 

conclude that the trial court did not ignore or misapply the law, and did not 

exercise its judgment for reasons of partiality, prejudice, bias or ill will, or 

arrive at a manifestly unreasonable decision. Accordingly, the trial court did 

not abuse its discretion in imposing Appellant’s aggregate sentence of 41⁄2 to 

9 years’ incarceration.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/5/2017