J-S64010-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

BRANDON SIMOLA 

 Appellant No. 214 WDA 2014 

Appeal from the Judgment of Sentence August 14, 2013 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0002515-2013 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J. 

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 7, 2014 

 Brandon Simola appeals from his judgment of sentence imposed in the 

Court of Common Pleas of Allegheny County following his convictions for one 

count each of: retail theft (F3),1 simple assault (M2),2 possession of a 

controlled substance,3 and possession of drug paraphernalia.4 Upon review, 

we affirm. 

 On May 23, 2013, Simola pled guilty to the above-listed offenses. The 

court sentenced Simola to an aggregate term of 18 to 36 months’ 

____________________________________________ 

1

 18 Pa.C.S. § 3929(a)(1). 

2

 18 Pa.C.S. § 2701 (a)(1). 

3

 35 Pa.S. § 780-113(a)(16). 

4

 35 Pa.S. § 780-113 (a)(32). 
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imprisonment, followed by two years of probation. Following the trial court’s 

denial of his post-sentence motion on January 3, 2014, Simola filed a timely 

notice of appeal.5

On appeal, Simola contends that the court abused its discretion by 

failing to consider his rehabilitative needs and imposing a manifestly 

excessive and unreasonable sentence. Simola’s claim implicates the 

discretionary aspects of his sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court’s jurisdiction by satisfying a four-part test: 

We conduct a four-part analysis to determine: (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.A. § 9781(b). 

Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing 

or in a motion to modify the sentence imposed. 

____________________________________________ 

5

 On February 13, 2014, the trial court ordered a statement of errors 

complained of on appeal, to which Simola timely responded, claiming the 

court imposed an illegal sentence at count one and that the court abused its 

discretion. Simola’s first claim was based on a scrivener’s error, which 

resulted in the docket reflecting a different sentence from that imposed at 

the time of sentencing. On June 23, 2014, the trial court submitted its Rule 

1925(a) opinion and corrected the scrivener’s error on the docket to reflect 

the correct 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. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) 

(citations and quotations omitted). 

Here, Simola has met the first three requirements of the four-part 

test. However, as this Court recently noted in Griffin, there is ample 

precedent to support a determination that Simola’s allegation fails to raise a 

substantial question. Griffin, 65 A.3d at 936-37 (citing Commonwealth v. 

Cannon, 954 A.2d 1222, 1228-29 (Pa. Super. 2008) (claim that trial court 

failed to consider defendant’s rehabilitative needs, age, and educational 

background did not present substantial question); Commonwealth v. 

Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (claim that sentence failed to 

take into consideration defendant’s rehabilitative needs and was manifestly 

excessive did not raise substantial question where sentence was within 

statutory guidelines and within sentencing guidelines); Commonwealth v. 

Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) (claim that trial court 

failed to appropriately consider appellant’s rehabilitative needs does not 

present substantial question); Commonwealth v. Lawson, 650 A.2d 876, 

881 (Pa. Super. 1994) (claim of error for failing to consider rehabilitative 

needs does not present substantial question)). 
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Even if we were to find that Simola’s claim did raise a substantial 

question, the underlying allegation is meritless. 

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. 

* * * 

When imposing a sentence, a court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. In particular, the court should refer to the 

defendant’s prior criminal record, his age, personal 

characteristics and his potential for rehabilitation. Where the 

sentencing court had the benefit of a presentence investigation 

report (“PSI”), we can assume the sentencing court was aware 

of relevant information regarding the defendant’s character and 

weighed those considerations along with mitigating statutory 

factors. Further, where a sentence is within the standard range 

of the guidelines, Pennsylvania law views the sentence as 

appropriate under the Sentencing Code. 

Griffin, 65 A.3d at 937-38 (citations omitted). 

The record belies Simola’s claim that the court failed to acknowledge 

his “dire need to be rehabilitated given the serious drug-addiction that has 

plagued him for the majority of his adult life.” Appellant’s Brief, at 11. As 

the trial court explained, 

[Simola’s] drug problem was addressed in the presentence 

report and discussed at the sentencing hearing. The [c]ourt, 

responding to [Simola’s] statement that he had entered a 

methadone treatment program shortly before the sentencing 

hearing, noted that he had been arrested on June 13, three 

weeks after he entered his plea in this case, and charged 
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with possession of heroin. [We] explained the reasons for the 

sentenced imposed: 

The [c]ourt’s reviewed the pre-sentence report for a 

second time. Keep coming up with the same conclusion. 

You have been going in and out of this court system since 

1998. Doing the math, that’s 15 years. 15 years of using 

drugs, retail theft, sexual assault, simple assault, theft by 

deception, criminal conspiracy, and now all of a sudden -- 

after you enter a plea of guilty to retail theft in May, you 

get arrested again for possession. Now all of a sudden 

you’re in a methadone maintenance program. Possession, 

by the way, of heroin. I think it has been 15 years of 

judges trying to reach you and haven’t been successful. 

Trial Court Opinion, 6/23/14, at 3-4 (emphasis in original). Thus, the court 

considered Simola’s drug addiction and weighed his rehabilitative needs 

against his fifteen years of criminal activity and concluded that incarceration 

would both prevent him from using drugs and preying on others to support 

that addiction. 

Based on our review of the record, Simola has failed to establish 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. Griffin, supra. Thus, for all of the foregoing 

reasons, we decline to disturb Simola’s judgment of sentence. 

Judgment of sentence affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/7/2014