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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA,

Appellee

v. JOHN FARRELL , Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 590 EDA 2018
Appeal from the Judgment of Sentence January 4 , 2018 i n the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- 2014 CP

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- 2014 CP

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- 2014 BE FORE: PANELLA , P. J., STRASSBURG ER, J. * and COLINS , J. * MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 22, 2020
John Farrell ( Appellant ) appeals 1 from the judgment of sentence
im posed following his convictions for aggrav ated assault, conspiracy, and possession of an instrument of crime (PIC). We affirm.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 We note that Appellant should have filed a separate notice of appeal from each of the three separate trial court docket numbers. See Pa.R.A.P. 341(a); see also Commonwealth v. Walker , 185 A.3d 969, 977 (Pa. 2018) ( holding that “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases” ). However, our Supreme Court’s mandate applies prospectively to appeals filed after the date of the Walker decision, i.e. , June 1, 2018. Because the instant appeal was filed on February 20, 2018, the Walker holding does not apply and we decline to quash the appeal on this basis

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The u nderlying charges stem from an incident on March 21, 2014, where Appellant and four co

- defendants attacked a group of high school students, s tabbing and s eriously injuring three of them. We glean the following facts from the record. On March 21, 2014, at about 10 p.m., Appellant and co

- defendants Hellena Andro, David Cramp, Ryan Palen, and Tyler Bollinger encountered the group of students, including Joseph Galasso, James Galass o , and Thomas Bayer (collectively, the Victims 2 ). Appellant and the co

- defenda nts initiated a physical fight with the Victims by throwing glass beer bottles at them. The Victims, who were unarmed, responded by engaging in a fistfight, punching Appellant and the co - defendants. In the end, the Victims were stabbed multiple times wit h knives and suffered critical injuries that required hospitalization. Joseph suffered three stab wounds, James suffered eight, and Thomas suffered five. Appellant and the

co - defendants ran fro m the scene to the residence of Bollinger’s father, where Bol linger hid two knives that were used in the assault. The knives were recovered pursuant to a search warrant executed the following day. Based on investigation, the police identified Appellant as one of the individuals suspected of stabbing the Victims.
B ased on the foregoing , Appellant was charged with aggravated assault and related offenses at three separate lower court docket numbers

_________________ __________ ______ ____ _______ 2 We will refer to individual victims by their first names as two of the Victims share the same last name.J

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for each victim, and was listed for a consolidated jury trial with his co

defendants . Prior to trial, co

- defendants Andr o, Cramp, and Palen ple aded guilty. Thereafter, the Commonwealth agreed to sever the trials of Appellant and Bollinger. Appe llant ’s trial, which was held first, resulted in a mistrial due to a hung jury. The Commonwealth then moved to consolidate Appell ant’s and Bollinger’s cases for a joint jury trial , which the trial court granted. After several continuances, the consolidated jury trial was scheduled for October 10, 2017. Before trial started on that date, Bollinger
entere d into a negotiated guilty p lea. Appellant proceeded to a jury trial from October 10 to 16 , 2017

. At the conclusion of the jury tri al Appellant was found guilty of three
count s of aggravated assault, and one count each of conspiracy to commit aggravated assault and PIC. On Januar y 4 , 2018, the trial court sentenced Appel lant t o the following terms of incarceration: 5 to 15 years each for aggravated assault of Joseph and James, 6 to 18 years for aggravated assault of Thomas, 5 to 10 years for conspiracy, and 21⁄2 to 5 years for PIC. The aggravated assault convictions are to run consecutive to each other , with the other sentences to run concurrent, resulting in an aggregate term of incarceration of 16 to 48 years . N.T., 1/4/2018, at 75

- 78. Appellant was also ordered to undergo anger management and parenting classes, c omply with the recommendations of a dual diagnosis assessment, receiveJ

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vocational training, have no contact with the V ictims or witnesses, pay restitution to Thomas , and pay court costs and fines. Id. at 74

- 75, 77. On J anuary 16, 2018, Appellant timely 3 filed a post

- sentence motion for reconsideration of sentence, in which he challenged the discretionary aspects of his sentence. Aside from amending Appellant’s sentence to provide Appellant credit for time served while o n house arrest, the trial court denied Ap pellant’s post

- sentence motion on January 23, 2018

. T his timely

- filed appeal followed. 4 On appeal, Appellant challenges the discretionary aspects of his sentence of 16 to 48 years of incarceration. Appellant’s Bri ef at 7. Appellant alleges there is an unexplained disparity bet ween his sentence and that of his co - defendant s , and claims the trial court failed to consider his rehabilitative needs and lack of criminal record. 5 Id. at 10

- 11 . Thus, we consider his iss ue mindful of the following.

_________________ __________ ______ ____ _______ 3 See 1 Pa.C.S. § 1908 (“ Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.”).

4 Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

5 Insofar as Appellant claims in his brief that the trial court failed t o consider the sentencing guidelines, the nature of the offense, and evidence of mitigation concerning Appellant ’s character , Appellant waived these issues by failing to raise them in his Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b)(3)(iv) (“[A]ny i ssue not properly included in the [s]tatement timely filed and served pursuant to subdivision (b) shall be deemed waived.”); see (Footnote Continued Next Page)J

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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 b y 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 un reasonable decision. * * * When imposing [a] sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant’s prior crimina l record, age, personal characteristics and potential for rehabilitation. Commonwealth v. DiClaudio , 210 A.3d 1070, 1074

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- 61 (Pa. Super. 2014)). An appellant is not entitled to th e review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction. We determine whether the appellant has invoked our jurisdicti on by considering the following four factors: (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). (Footnote Continued)

_____________ __ ________ also Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) ("Any issues not raised in a 1925(b) statement will be deemed waived.”)

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DiClaudio , 210 A.3d at 1075 (quoting Commonwealth v. Samuel , 102 A.3d 1001, 1006

- 07 (Pa. Super. 2014)). Appellant has satisfied the first three requirements: he timely filed a notice of appeal, preserved the issue in a post

- sentence motion, and included a Pa.R.A.P. 2119(f) stateme nt in his br ief. Therefore, we now consider whether Appellant has raised a substantial question for our review. The determination of what constitutes a substantial question must be evaluated on a case

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- case basis. Commonwealth v. Paul , 925 A.2d 825, 82 8 (Pa. Super. 2007). “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 fundamenta l norms which underlie the sentencing process.” Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (citation and quotation marks omitted). In his Pa.R.A.P. 2119(f) statement, Appellant asserted three instances in which the trial court abused its discretion: 1) penaliz ing Appellant for exercising his right to a trial as his co

- defendants who entered negotiated guilty pleas received shorter sentences ; 2) failing to consider his lack ofJ

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criminal record; and 3) failing to consider his rehabilitative n eeds. 6 Appellant’s Brief at 10

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. We conclude Appellant has raised a substantial question with each of his claims. Commonwealth v. Cleveland , 703 A.2d 1046, 1048 (Pa. Super. 1997) (holding substantial question raised where Cleveland averred an unexplain ed disparity between his sentence and that of his co

defendant); Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014) (“It is well

- established that a sentencing court’s failure to consider mitigating factors rai ses a substantial question.”). Accord ingly, we review the merits of his claims. Appellant argues the trial court abused its discretion because the disparity between his sentence and co - defendants ’ is “astonishing,” and to justify the sentencing disparity “based solely on pleading guilty or
pr oceeding to trial, would have the effect of punishing a defendant for exercising his right to a jury trial.” Appellant’s Brief at 13

- 14. Additionally, Appellant argues the trial court failed to consider his lack of criminal record and rehabilitative need s. Id. at 15. In support, he states he was a victim of ab use as a child, had been diagnosed with post

- traumatic stress d isorder,

a ttention deficit hyperactivity disorder , mood swings, and oppositional defiance disorder. Id.

_________________ __________ ______ ____ _______ 6 As stated supra , Appellant included other issues that he waived by failing to raise them in his Pa.R.A.P. 1925(b) statement.J

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In addressing these claims, t he tri al court posited that Appellant failed
to raise a substantial question. Rule 1925(a) Opinion, 2/14/2019, at 13 , 17

. Regardless, the trial court stated that e ven if Appellant did raise a substantial question , the trial court “thoroughly addressed th e reasons for differences in the sentencing schemes” at sentencing between Appellant and his co

- defendants. Id. at 12. The court noted before it imposed Appellant’s sentence, it thoroughly reviewed the pre

- sentence investigative (PSI) report and mental h ealth assessments. Id. at 19. Moreover, the court stated it “clearly acknowledged Appellant’s lack of prior criminal record” during discussions involving the computation of the offense gravity score of each offense coupled with the zero prior record scor e. Id. The court concluded that it considered all relevant sentencing factors, and Appellant’s sentences accounted for his multiple victims. Id. at 21

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T his Court has held that a co

- defendant who has entered a negotiated guilty plea and a defendant w ho is sentenced after a jury trial “are not similarly situated for sentencing purposes.” Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (citation omitted). Thus, any disparity
in sentencing between a co

- defendant sentenced pursuant to a negot iated plea deal and a defendant sentenced after trial “does not demonstrate the trial court penalized the defendant for exercising his right to a jury trial.” Id. Furthermore, a defendant is not entitled to the same sentence as that imposed on another pe rson involved in the same crime. Commonwealth v.J

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Mastromarino , 2 A.3d 581, 589 (Pa. Super. 2010). Rather, “when there is a disparity between co

- defendants’ sentences, a sentencing court must give reasons particular to each defendant explaining why they r eceived their individual sentences.” Id. (citation omitted). At sentencing, the trial court offered extensive reasons for imposing Appellant’s sentence, including , inter alia , the seriousness of the crime, impact on the victims, the need to protect the pu blic , and Appellant’s lack of remorse. N.T., 1/4/2018, at 67, 71, 73. Specifically, the trial court noted that Appellant displayed an “extreme level of violence [,] ” he i nflicted severe damage upon the V ictims that will last throughout their lifetimes, he posed

“ a danger to the community at large,” and he displayed “absolute lack of remorse.” Id. Furthermore , contrary to Appellant’s assertion, the trial court stated on the record that Appellant’s longer sentence was not punishment for going to trial; rat her, the disparity was a result of the foregoing, and his

co - defendants having ple ade d guilty and “accept[ing] responsibility for their actions.” Id. at 28, 36, 73. Additionally, t he trial court noted Appellant’s

co - defendants , except for Bollinger, were sentenced “before a different judge.” Id. at 73. Based on the foregoing, the trial court sufficiently explained the reasons for Appellant’s sentence s . Accordingly, we conclude the trial court did not abuse its discretion in imposing upon Appellant a hig her aggregate sentence than what his co

- defendants received as part of their guilty pleas

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In fashioning Appellant’s sentence, the trial court noted that Appellant suffered abuse as a child, used drugs, and suffers from extreme mood swings. Therefore , the trial court ordered Appellant to undergo anger management and parenting classes, receive vocational training, and comply with the recommendations of a dual diagnosis assessment and any recommended treatment for mental health and drug use. In addition, t h e trial court possessed and reviewed Appellant’s PSI report, and stated it reviewed the sentencing guidelines prior to imposing Appellant’s sentence. See Commonwealth v. Boyer , 856 A.2d 149, 154 (Pa. Super. 2004) (stating that where the sentencing court h as the benefit of a PSI report, it is presumed to have cons idered all relevant information). Therefore, contrary to Appellant’s claim, the record indicates that the trial court referred to Appellant’s lack of criminal record and considered Appellant’s reh abilitative needs when imposing Appellant’s sentence

. Accordingly, the trial court did not abuse its discretion in imposing Appellant’s sentence. Because Appellant has failed to demonstrate that he is entitled to relief on any of his claims, we affirm Ap pellant’s judgments of sentence

. Judgments of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2020