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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

TYRIK GREEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1305 EDA 2020

Appeal from the Judgment of Sentence Entered June 26, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009457-2016

BEFORE: LAZARUS, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED JANUARY 14, 2022

Appellant, Tyrik Green, appeals nunc pro tunc from the judgment of 

sentence entered in the Philadelphia County Court of Common Pleas, following 

his jury trial convictions for attempted murder, aggravated assault, robbery, 

criminal conspiracy, carrying a firearm without a license, carrying a firearm in 

public in Philadelphia, and possession of an instrument of crime.1 We affirm. 

The relevant facts and procedural history of this case are as follows. In 

August 2015, Appellant was in a romantic relationship with Fayana Graham. 

Ms. Graham became acquainted with Vincent Burrell (“Victim”) when she

messaged him on Craigslist to sell old phones to him. On August 11, 2015, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a), 2702(a), 3701(a), 903(a), 6106(a), 6108, and 

907, respectively. 
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Victim met with Ms. Graham with the understanding that he would purchase

a phone from her cousin. Unbeknownst to Victim, Ms. Graham was engaged 

in a scheme with Appellant to rob Victim. 

Ms. Graham directed Victim to drive to an alleyway in North Philadelphia 

where her cousin was supposed to meet them. While Victim and Ms. Graham 

were parked, a third cohort involved in the scheme approached the vehicle 

and entered the backseat. He pulled out a gun, put it to Victim’s neck and 

said, “You know what this is.” Immediately after, Appellant walked up to the 

driver’s side window and held a gun to Victim’s head through the open window. 

Appellant reached in the car and tried to take money out of Victim’s pockets. 

The man in the backseat began shooting and Victim was struck in the neck. 

Victim began driving away and Appellant began to fire shots at Victim. Victim 

testified that the bullet fired by Appellant struck his upper shoulder. The bullet 

in the shoulder hit bone, causing Victim to lose full rotation of that shoulder 

for nine months. Ms. Graham was also shot in the left calf during the exchange 

Following trial, a jury convicted Appellant of all charges on April 6, 2017. 

At the sentencing hearing held on June 26, 2017, Appellant’s counsel

requested an aggregate sentence of 10 to 20 years’ incarceration. In support 

of this request, counsel cited mitigating factors such as Appellant’s difficult 

upbringing, struggles with substance abuse and recent diagnosis of bipolar 

disorder and depression. In turn, the Commonwealth requested an aggregate 

sentence of 25 to 50 years’ incarceration. The Commonwealth noted the 
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serious nature of Appellant’s crimes, his prior record, and his history of 

misconduct while in state custody. After considering the relevant factors

presented, the trial court sentenced Appellant to an aggregate sentence of 25 

to 50 years of incarceration. 

Appellant timely filed a post-sentence motion, which the court denied 

on September 28, 2017. On April 11, 2018, Appellant requested 

reinstatement of his appellate rights nunc pro tunc, which the court granted

on February 13, 2020. Following the COVID-19 court closure, the court issued 

a second order reinstating Appellant’s direct appeal rights nunc pro tunc on 

June 18, 2020. On June 29, 2020, Appellant timely filed a nunc pro tunc 

notice of appeal. On October 22, 2020, Appellant filed a voluntary Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. 

On appeal, Appellant raises the following issues for our review:

Was the evidence insufficient to sustain the attempted 

murder conviction because the Commonwealth failed to 

prove that Appellant acted with specific intent to kill?

Did the sentencing court commit an abuse of discretion by 

denying Appellant’s motion for reconsideration of 

sentencing because the sentence was excessive under the 

circumstances and the court did not consider mitigating 

factors when deciding upon the sentence it imposed?

(Appellant’s Brief at 4).

In his first issue on appeal, Appellant argues that Victim started to drive 

away before he fired his gun. Appellant avers that he only fired his gun to 

make Victim stop the car. Thus, Appellant maintains that “it is impossible to 
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ascertain, absent other evidence of his intent, whether [Appellant] was aiming 

at a vital part of the body or a non-vital part, if he was aiming at the body at 

all.” (Id. at 24). Given this uncertainty, Appellant concludes that the 

Commonwealth failed to meet its burden of proving the specific intent required 

to sustain a conviction for attempted murder. We disagree.

When examining a challenge to the sufficiency of evidence: 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying the above test, we may not weigh the evidence and 

substitute our judgment for the fact-finder. In addition, we 

note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may 

be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence. 

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal 

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. 

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). 

The Crimes Code defines criminal attempt as follows:

§ 901. Criminal attempt
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(a) Definition of attempt.―A person commits an 

attempt when, with intent to commit a specific crime, he 

does any act which constitutes a substantial step toward the 

commission of that crime. 

18 Pa.C.S.A. § 901. 

The Crimes Code defines first-degree murder as follows: 

§ 2502. Murder

(a) Murder of the first degree.―A criminal homicide 

constitutes murder under the first degree when it is 

committed by an intentional killing. 

18 Pa.C.S.A. § 2502(a). “A person may be convicted of attempted murder if 

he takes a substantial step toward the commission of a killing with the specific 

intent in mind to commit such an act.” Commonwealth v. Dale, 836 A.2d 

150, 153 (Pa.Super. 2003) (quoting Commonwealth v. Hobson, 604 A.2d 

717, 719 (Pa.Super. 1992)). “Specific intent to kill can be established though 

circumstantial evidence, such as the use of a deadly weapon on a vital part of 

the victim’s body.” Commonwealth v. Montalvo, 598 Pa. 263, 274, 956 

A.2d 926, 932 (2008), cert denied, 556 U.S. 1186, 129 S.Ct. 1989, 173 

L.Ed.2d 1091 (2009). A gun is a deadly weapon. See Commonwealth v. 

Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (2003). Further, the neck and 

head are vital parts of the body. Montalvo, supra. See also 

Commonwealth v. Mattison, 623 Pa. 174, 185, 82 A.3d 386, 392 (2013). 

“Also, we are cognizant that the period of reflection required for 

premeditation to establish the specific intent to kill ‘may be very brief; in fact 

the design to kill can be formulated in a fraction of a second. Premeditation 
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and deliberation exist whenever the assailant possesses the conscious purpose 

to bring about death.’” Commonwealth v. Rivera, 603 Pa. 340, 355, 983 

A.2d 1211, 1220 (2009), cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 

L.Ed.2d 1191 (2010) (quoting Commonwealth v. Drumheller, 570 Pa. 117, 

146, 808 A.2d 893, 910 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 

156 L.Ed.2d 137 (2003)).

Instantly, Appellant held a gun up to Victim’s head while standing right 

outside of the driver’s side window. Both Victim and Ms. Graham testified that 

Appellant fired his gun into the car. Although Victim started to drive away, 

Appellant began to fire immediately and was still in close range when he fired

his gun. Thus, Appellant fired shots with a deadly weapon at Victim’s head 

and neck area (vital parts of the body) at close range, ultimately hitting Victim 

on the shoulder. Viewed in the light most favorable to the Commonwealth as 

the verdict winner, the Commonwealth presented sufficient evidence to 

sustain Appellant’s conviction for attempted murder. See Hansley, supra. 

In his second issue on appeal, Appellant argues that imposing a 

consecutive sentence with a maximum of 50 years’ imprisonment essentially 

ensures that Appellant will spend the rest of his life in prison. Appellant 

contends that the sentence imposed conflicts with the requirements that a 

sentence be consistent with the need to protect the public, the gravity of the 

offenses as it relates to the impact on the life of the victim and on the 

community, and the rehabilitate needs of the offender. Appellant insists that 

the sentence imposed “discounts the possibility of rehabilitation and 
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effectively removes Appellant from society for most of his potential life, 

thereby precluding the possibility of his ever becoming a contributing member 

of society.” (Appellant’s Brief at 44). Appellant further avers that the 

sentencing court did not properly consider mitigating factors when imposing 

the sentence and focused only on the seriousness of the crime and the need 

to protect the public. Thus, Appellant concludes that the sentence imposed is 

“manifestly excessive with regard to the circumstances and must be 

overturned as clearly unreasonable.” (Id. at 52). We disagree. 

As presented, Appellant’s claims challenge the discretionary aspects of 

his sentence. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 

2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013) (considering 

challenge to imposition of consecutive sentences as claim involving 

discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d 

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive 

challenges discretionary aspects of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910 

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing 

issue: 

[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 
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from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke this Court’s jurisdiction by including in his brief a separate concise 

statement demonstrating a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an 

appellant separately set forth the reasons relied upon for allowance of appeal 

furthers the purpose evident in the Sentencing Code as a whole of limiting any 

challenges to the trial court’s evaluation of the multitude of factors impinging 

on the sentencing decision to exceptional cases.” Commonwealth v. 

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 

129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (emphasis in original) (internal 

quotation marks omitted). 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13. A claim of excessiveness can raise a 

substantial question as to the appropriateness of a sentence under the 
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Sentencing Code, even if the sentence is within the statutory limits. Mouzon, 

supra at 430, 812 A.2d at 624. Bald allegations of excessiveness, however, 

do not raise a substantial question to warrant appellate review. Id. at 435, 

812 A.2d at 627. Additionally, 

Pennsylvania law affords the sentencing court discretion to 

impose [a] sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences 

already imposed. Any challenge to the exercise of this 

discretion does not raise a substantial question. In fact, this 

Court has recognized the imposition of consecutive, rather 

than concurrent, sentences may raise a substantial question 

in only the most extreme circumstances, such as where the 

aggregate sentence is unduly harsh, considering the nature 

of the crimes and the length of imprisonment. 

Austin, supra at 808 (internal citations and quotation marks omitted). 

Further, 

“[T]his 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.Super. 

2013) (internal citation omitted). 

However, “prior decisions from this Court involving whether 

a substantial question has been raised by claims that the 

sentencing court ‘failed to consider’ or ‘failed to adequately 

consider’ sentencing factors has been less than a model of 

clarity and consistency.” Commonwealth v. Seagraves, 

103 A.3d 839, 842 (Pa.Super. 2014) (citing 

[Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 

2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009)]). 

In Commonwealth v. Dodge, this Court determined an 

appellant’s claim that the sentencing court “disregarded 

rehabilitation and the nature and circumstances of the 

offense in handing down its sentence” presented a 

substantial question. Dodge, supra at 1273. 
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This Court has also held that “an excessive sentence claim—

in conjunction with an assertion that the court failed to 

consider mitigating factors—raises a substantial question.” 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 

2014), appeal denied, 629 Pa. 636, 105 A.3d 736 (2014) 

(quoting Commonwealth v. Perry, 883 A.2d 599, 602 

(Pa.Super. 2005)). 

Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa.Super. 2015). 

Nevertheless: 

[A bald] allegation that the sentencing court failed to 

consider certain mitigating factors generally does not 

necessarily raise a substantial question. Commonwealth 

v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003). Accord 

Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.Super. 

1999) (reiterating allegation that sentencing court “failed to 

consider” or “did not adequately consider” certain factors 

generally does not raise substantial question). Compare 

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 

(Pa.Super. 2003) (en banc) (stating substantial question is 

raised, however, where appellant alleges sentencing court 

imposed sentence in aggravated range without adequately 

considering mitigating circumstances).

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

the particular circumstances of the offense and the 

character of the defendant.” Commonwealth v. Griffin, 

804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 

671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148, 

125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the 

court should refer to the defendant’s prior criminal record, 

his age, personal characteristics and his potential for 

rehabilitation.” Id. Where the sentencing court had the 

benefit of a [pre-sentence investigation (“PSI”) report], 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.” Commonwealth v. Devers, 519 Pa. 

88, 101-02, 546 A.2d 12, 18 (1988). See also 

Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 

2005) (stating if sentencing court has benefit of PSI, law 

expects court was aware of relevant information regarding 
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defendant’s character and weighed those considerations 

along with any mitigating factors). Further, where a 

sentence is within the standard range of the guidelines, 

Pennsylvania law views the sentence as appropriate under 

the Sentencing Code. See Commonwealth v. CruzCenteno, [668 A.2d 536 (Pa.Super. 1995)], appeal denied, 

544 Pa. 653, 676 A.2d 1195 (1996) (stating combination of 

PSI and standard range sentence, absent more, cannot be 

considered excessive or unreasonable). 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010). 

Instantly, Appellant preserved his sentencing claims in a post-sentence 

motion and filed a timely nunc pro tunc notice of appeal. Appellant also 

included the requisite Rule 2119(f) statement. To the extent that Appellant’s 

claim of an excessive sentence, in conjunction with his assertion that the court 

failed to consider mitigating factors, raises a substantial question (see 

Caldwell, supra; Raven, supra), we will address the appeal on the merits.

We observe that:

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.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006).

Here, Appellant’s sentencing claims do not warrant relief. The court did 

not impose all sentences consecutively and did not impose any sentences 

beyond the standard range. As well, the court explained that the serious 

nature of Appellant’s crimes warranted some consecutive sentences in this 
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case. The court also noted that Appellant has prior criminal convictions and 

committed assault and other violations while in state custody. 

The record further belies Appellant’s claim that the court did not 

adequately consider his background, struggles with substance abuse and 

mental health. The court had the benefit of a PSI report in this case, which 

included Appellant’s personal history, struggles with substance abuse, and 

recent diagnosis of bipolar disorder and depression. Appellant’s counsel 

discussed these details during argument at sentencing and requested that 

Appellant be treated while in prison. (See N.T. Sentencing Hearing, 6/26/17, 

at 3-4). Beyond this, the court explicitly stated: “I’ll accept [Appellant’s 

apology] and the record should reflect that the presentence reports, between 

history, his upbringing—[Appellant] was diagnosed with bipolar. The court 

always looks for any kind of mitigation with respect to medical problems or 

other problems....” (Id. at 8). Thus, the record shows the court considered 

the mitigating factors but simply chose to impose a sentence greater than 

Appellant had hoped. Under these circumstances, we see no reason to disrupt 

the court’s sentencing discretion. See Shugars, supra. Accordingly, we 

affirm. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/14/2022