J-S66023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS LOMAX 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1886 EDA 2017

Appeal from the Judgment of Sentence March 16, 2010

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0008210-2009

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.: FILED APRIL 11, 2019

Thomas Lomax appeals, nunc pro tunc, from the judgment of sentence 

imposed on March 16, 2010, in the Court of Common Pleas of Philadelphia 

County. On appeal, Lomax challenges the discretionary aspects of his 

sentence. We affirm. 

Lomax entered non-negotiated pleas of guilty to the crimes of robbery 

and possessing an instrument of crime (“PIC”) and was sentenced to 

concurrent terms of eight to sixteen years’ incarceration on the robbery charge

and two and a half to five years’ incarceration on the PIC charge. At the same 

time, he pled guilty to aggravated assault and PIC arising from an unrelated 

incident1. The sentencing was consolidated pursuant to Pa.R.Crim.P. 701. He 

was sentenced to five to ten years on the aggravated assault charge and two 

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1 CP-5-CR-0008921-2009 
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and a half to five years on the PIC charge, both to run concurrent to the 

sentences stemming from the robbery.

On April 6, 2010, the court denied his post sentence motion for 

reconsideration of sentence. He did not file an appeal. 

On October 8, 2010, Lomax filed a timely pro se petition for relief

pursuant to the Post Conviction Relief Act2 (“PCRA”) in which he claimed his 

trial counsel was ineffective in communicating with him regarding his guilty 

plea. 

New counsel was appointed who filed an amended petition on August 

16, 2012 seeking reinstatement of Lomax’s appellate rights nunc pro tunc. On

July 8, 2013, the court granted Lomax leave to file an appeal nunc pro tunc, 

which was filed on July 31, 2013. However, on January 14, 2015, this Court 

dismissed Lomax’s appeal due to counsel’s failure to file a brief. 

On April 1, 2015, Lomax filed a second pro se PCRA petition requesting 

new counsel be appointed. New counsel was appointed, who filed an amended 

petition on March 13, 2017 seeking reinstatement of Lomax’s appellate rights 

nunc pro tunc. On May 15, 2017, the PCRA court again reinstated his appellate 

rights. This timely appeal followed. 

In his sole issue on appeal, Lomax argues that the trial court abused its 

discretion by imposing a manifestly excessive sentence. “A challenge to the 

discretionary aspects of a sentence must be considered a petition for 

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2 42 Pa.C.S.A. §§ 9541-9546.
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permission to appeal, as the right to pursue such a claim is not absolute.” 

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation 

omitted). 

An appellant challenging the discretionary aspects of his sentence 

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

[W]e 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation 

omitted; brackets in original).

Here, Lomax preserved his issue through a timely motion for 

reconsideration of the sentence imposed, and filed a timely appeal. Counsel 

has included the required Rule 2119(f) statement. We therefore review the 

Rule 2119(f) statement to determine if Lomax has raised a substantial 

question.

We examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists. See Commonwealth v. Tirado, 870 

A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for 

which the appeal is sought, in contrast to the facts underlying the appeal, 

which are necessary only to decide the appeal on the merits.” Id. (citation 

omitted); see also Pa.R.A.P. 2119(f).
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Lomax “must show that there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at 

274 (citation omitted). That is, “the sentence violates either a specific 

provision of the sentencing scheme set forth in the Sentencing Code or a 

particular fundamental norm underlying the sentencing process.” Tirado, 870 

A.2d at 365. 

Lomax’s Rule 2119(f) statement claims that the trial court imposed a 

manifestly excessive sentence. A generic claim that a sentence is excessive 

does not raise a substantial question for our review. See, e.g., 

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013). However, 

Lomax asserts that the Court focused solely on the seriousness of the offense 

and did not consider his individual characteristics. See Appellant’s Brief, at 7.

An averment that the court sentenced based solely on the seriousness of the 

offense and failed to consider all relevant factors has been found to raise a 

substantial question. See Commonwealth v. Macias, 968 A.2d 773 (Pa. 

Super. 2009). We therefore turn to Lomax’s claim. 

Our standard of review of a sentencing challenge is well settled:

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.
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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation 

omitted). 

Here, the trial court reviewed a pre-sentence report. Where the trial 

court had the benefit of reviewing a pre-sentence report, we must

presume that the sentencing judge was aware of relevant 

information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors. A 

pre-sentence report constitutes the record and speaks for itself. 

In order to dispel any lingering doubt as to our intention of 

engaging in an effort of legal purification, we state clearly that 

sentencers are under no compulsion to employ checklists or any 

extended or systematic definitions of their punishment procedure. 

Having been fully informed by the pre-sentence report, the 

sentencing court’s discretion should not be disturbed. This is 

particularly true, we repeat, in those circumstances where it can 

be demonstrated that the judge had any degree of awareness of 

the sentencing considerations, and there we will presume also that 

the weighing process took place in a meaningful fashion. It would 

be foolish, indeed, to take the position that if a court is in 

possession of the facts, it will fail to apply them to the case at 

hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992). As the 

trial court in this case had the benefit of a pre-sentence report as well as a 

mental health report, combined with the trial court’s consideration of the 

seriousness of the offenses we conclude that it considered all relevant 

sentencing factors. 

We acknowledge the court sentenced Lomax outside the guidelines for 

robbery and note that it does not appear the trial judge explicitly stated his 

reasons for sentencing Lomax when he imposed sentence. See Pa.R.Crim.P. 
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§ 704(C)(2). However, Lomax has not challenged this omission on appeal. 

Since it is not an illegal sentence claim, it is waived. 

This issue was brought up during the hearing on Lomax’s motion for 

reconsideration of sentence during which the Judge explained his reasons for 

sentence on the record. 

No one would argue that if he got a five to ten-year sentence on 

the robbery bill and a different Judge on the aggravated assault 

gave him three to something, or five to something on the 

aggravated assault bill and made them run consecutive, they 

would both be perfectly acceptable guideline sentences. They 

would be within the normal range, and there would be no grounds 

for any attack on the sentence, or reasons for the Court to 

reconsider. 

It’s a situation where there was two separate events committed 

at two separate times; one where the defendant’s out on bail for 

one felony when he committed another felony and the fact that 

they were disposed of together under a 701 plea consolidated 

allowed him to retain a prior record score of zero for both and 

allowed a consolidated sentence. 

In effect my sentence takes that into consideration, and I could 

have made it look easier administratively if I gave the five to ten 

on one and three to something on the other and made them run 

consecutively. I didn’t do that, and I just made everything on the 

robbery bill, which a rose by any other name would smell as sweet 

except no different. 

N.T., 4/6/2010, at 7-8. 

Thus, the Judge recognized that he imposed the greater sentence on 

the robbery charge even though the guidelines were higher on the aggravated 

assault charge. He reasoned that he essentially sentenced Lomax to eight to 

sixteen years total on both cases in front of him. Rule of Criminal Procedure 

701 provides that, before the imposition of a sentence, a defendant may plead 
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guilty to other offenses committed by him within the jurisdiction of the 

sentencing court. When such pleas are accepted, the court must sentence the 

defendant for all of the offenses. It is clear the judge took into account the 

consolidated nature of the sentencing and fashioned an aggregate sentence 

which considered both cases, and all four offenses, that were before him. 

As the court balanced the individual sentence for robbery with a below 

guidelines sentence on the aggravated assault charge, we find the aggregate 

sentence as a whole was not unreasonable considering the consolidated 

nature of the plea hearing. See Pa.R.Crim.P. 701. 

We conclude that Lomax’s claim is without merit. As this is the only issue 

presented by Lomax on appeal, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/19