J-S03034-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

DWAYNE HOWARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 630 EDA 2017

Appeal from the Judgment of Sentence August 25, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002307-2012

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 06, 2018

Appellant, Dwayne Howard, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County after he entered 

into an open guilty plea to charges of Possession with Intent to Deliver, 35 

Pa.C.S.A. § 780-113(a)(30), and Intentional Possession of a Controlled 

Substance, 35 Pa.C.S.A. § 780-113(a)(16). Raised for our consideration is 

whether the trial court abused its sentencing discretion in imposing an 

aggravated range sentence. We affirm.

The trial court aptly sets forth the pertinent factual and procedural 

history of the case. 

On November 30, 2011, police officers set up surveillance in the 

area of 4901 Oxford Avenue in the city and county of Philadelphia 

for a narcotics investigation. N.T. 1/5/2015 at 11. On November 

30, 2011, the police officers met with a confidential informant who 

called a phone number and asked the male voice for Percocet. Id. 
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The confidential informant was provided with $100 of prerecorded 

money to make the purchase. Id. at 12. The officers observed 

[Appellant] exit from Apartment 16-A, enter into a black Ford 500, 

meet with the confidential informant, engage in a hand-to-hand 

transaction and return with ten Percocet pills. Id. The officers 

followed the black Ford 500 back to 4901 Oxford Avenue and 

observed [Appellant] exit the vehicle and enter [the] Apartment. 

[On two more dates in early December, 2011, officers working 

surveillance observed Appellant sell Percocet pills to a confidential 

informant in a manner similar to that observed on November 30, 

2011.] 

On December 16, 2011, at approximately 4:40 p.m., officers 

executed a search and seizure warrant on the black Ford 500 and 

4901 Oxford Avenue, Apartment 16-A. N.T. 1/5/2015 at 13. 

Officers recovered from the black Ford 500 an amber pill bottle 

containing 105 Oxycodone pills. Id. Officers also recovered 279 

grams of cocaine, 8 grams of crack cocaine, and 279 grams of 

barbiturates. N.T. 8/25/16 at 18. The street value of these drugs 

[was] in excess of $14,000. Id.

On January 5, 2015, [Appellant] entered an open guilty plea to 

the charges of Possession with Intent to Deliver and Intentional 

Possession of a Controlled Substance. [Appellant] read, signed 

and discussed with counsel the plea agreement to plead guilty [to] 

the charges which carried a maximum penalty [of 15 years’ 

incarceration] and a fine of $40,000. N.T. 1/5/15 at 6. . . . 

[Appellant] then fled the Commonwealth for over one year without 

notice or permission from the court. 

On August 25, 2016, Appellant was sentenced to 7 to 14 [years’ 

incarceration on the above convictions].

On September 8, 2016, [Appellant] moved for Modification of 

Sentence. On January 9, 2017, Appellant’s Post-Sentence Motion 

was denied by operation of law and a Notice of Appeal to the 

Superior Court was filed on behalf of Appellant on January 31, 

2017. 

On March 1, 2017, Appellant filed a Motion for New Counsel. Denis 

Cogan, counsel for Appellant, filed a Motion to Withdraw as 

Counsel on March 23, 2017. On July 5, 2017, Appellant, through 
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new counsel Zak T. Goldstein, filed a Statement of Matters 

Complained of on Appeal.

Trial Court Opinion, filed 8/1/2017, at 1-4.

Appellant raises one issue for our consideration:

I. [DID] THE TRIAL COURT ABUSE[] ITS DISCRETION IN 

IMPOSING AN EXCESSIVE, AGGRAVATED GUIDELINE 

RANGE SENTENCE?

Appellant’s brief, at vi.

Appellant’s claim challenges the discretionary aspects of his sentence, 

from which there is no absolute right to appeal. See Commonwealth v. Hill, 

66 A.3d 359, 363 (Pa. Super. 2013). To reach the merits of a discretionary 

issue, this Court must determine:

whether the appeal is timely; (2) whether Appellant preserved 

[the] issue; (3) whether Appellant'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 substantial question that the 

sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013) 

(citation omitted).

As the record confirms that Appellant filed a timely notice of appeal and 

post-sentence motion, we review Appellant’s Pa.R.A.P. 2119(f) concise 

statement of reasons relied upon for allowance of appeal. In the concise 

statement, Appellant asserts, first, that the trial court abused its discretion in 

imposing a sentence that double-counts Appellant’s prior record score and 

offense gravity score. We find this specific claim waived as Appellant raises it 

for the first time in his appellate brief. See Commonwealth v. Mann, 820 
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A.2d 788, 794 (Pa.Super. 2003) (noting our rules of appellate procedure 

provide “issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.”). 

Appellant also asserts in his Rule 2119(f) statement that the trial court 

erred in confining its consideration of mitigation evidence to Appellant’s postoffense rehabilitation when he presented other mitigation evidence at 

sentencing. Assuming, arguendo, that Appellant did not waive this issue by 

filing a vague, court-ordered Pa.R.A.P. 1925(b) statement claiming only “The 

court abused its discretion in imposing an unreasonable and excessive 

sentence,”1 we find his sentencing claim does not present a substantial 

question for our review, as “this Court has held on numerous occasions that a 

claim of inadequate consideration of mitigating factors does not raise a 

substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d 

900, 903 (Pa. 2013) (citation omitted).

Even if Appellant’s claim did present a substantial question, the trial 

court explained why, despite Appellant’s mitigation proffer, an aggravated 

sentence was reasonable:

The sentencing court had a duty to consider the need to protect 

the public, consider the gravity of the offense regarding its impact 

on the community, and the rehabilitative needs of the defendant. 

Appellant has been arrested for robbery, convicted of aggravated 

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1 We decline to find waiver where the trial court’s Rule 1925(a) opinion 

meaningfully addresses whether it abused its sentencing discretion by failing 

to consider properly Appellant’s mitigation offer. As such, Appellant’s vague 

Rule 1925(b) statement does not hamper judicial review. See 

Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008). 
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assault, convicted of felony retail thefts, and narcotics violations 

in multiple counties within the Commonwealth. As the facts [in 

the present case] reflect, Appellant was caught with large 

amounts of varying narcotics whose street value exceeded

$14,000. The offense presented a harmful threat to the 

community for two reasons: (1) the mobility of Appellant in 

committing offenses outside Philadelphia County; and (2) the 

volume of narcotics Appellant possessed that may have been 

distributed throughout the Commonwealth.

In considering the rehabilitative needs of Appellant, the 

sentencing court weighed an extensive felonious criminal history 

dating back to 1999 and an offender with little respect for due 

process of law through his fleeing the Commonwealth without 

notice to this court, the Office of the District Attorney, or even 

[his] own counsel.

***

In sentencing Appellant to [an aggravated range sentence of] 7-

14 years, the court took into consideration Appellant’s 13 adult 

arrests, 7 conviction, 5 violations and one revocation. Further, 

[the court also considered the street value of the drugs recovered 

in the present case]. Lastly, the court considered the fact that 

Appellant absconded for one year after pleading guilty.

Defense counsel argues that Appellant’s troubled childhood and 

extensive family support, medical condition, and continued 

sobriety were not properly acknowledged in weighing the 

sentence. These factors were considered, but were greatly 

outweighed by the above facts.

Trial Court Opinion, at 6-7.

A review of the sentencing hearing supports the court’s opinion in this 

regard, as the court engaged in an extensive discussion with defense counsel 

and acknowledged that the defense had “put great effort in trying to show 

why pretty substantial mitigation should have been taking place in this case.” 

N.T., 8/25/16 at 8. This effort was undermined considerably, however, by 

Appellant’s pre-sentencing decision to cut off an ankle bracelet with an 
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electronic monitor and abscond from the jurisdiction after the court had 

refused the Commonwealth’s request to revoke bail and placed Appellant on 

house arrest, the court noted. N.T., at 22-23. While Appellant did eventually 

check himself into a six-month rehabilitation program in Virginia, the court 

noted he did not do so until nearly one year after he had absconded, N.T., at 

15, and his absconding was, in any event, an act of brazen disregard of the 

court’s authority:

I was struggling to accept some of [your defense team’s] 

reasoning through mitigation. As the Commonwealth stated and 

I stated earlier to your counsel, any effort that they make, the 

hundreds of hours they might have put into this case, you have 

thrown out the window. You cut your bracelet.

There are means which I could have put you in a drug treatment 

program in different prisons in the system. That would have given 

you treatment while you were there. But again, you threw that 

all away. You believed that you had the right to decide what you 

did and what you didn’t do. And for that I don’t see any mitigation. 

And for the reasons set forth by the Commonwealth and stated by 

me, I find a reason for aggravation in this case.

N.T., at 23-24.

Based on the foregoing, we find no merit to Appellant’s claim of error. 

We therefore affirm the judgment of sentence imposed by the trial court.

Judgment of sentence is AFFIRMED.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date:3/6/18