J-S08005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ORILANA EKUNFEO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 479 WDA 2019

Appeal from the Judgment of Sentence Entered February 13, 2019

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

No(s): CP-02-CR-0008269-2018

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 20, 2020

Appellant, Orilana Ekunfeo, appeals from the judgment of sentence 

entered on February 13, 2019, as made final by the denial of his post-sentence 

motion on February 26, 2019, following his bench trial convictions for 

possession of marijuana, possession with intent to deliver marijuana, and 

possession of drug paraphernalia.1 We affirm. 

The trial court summarized the facts of this case as follows:

On May 18, 2018, detectives from the City of Pittsburgh Bureau 

of Police executed a search warrant at [a residence] on Walter 

Street in the City of Pittsburgh. Detectives entered the residence 

and began conducting a search. Detectives determined that 

[Appellant] resided [in a] second floor [bedroom] of that 

residence[.] While searching [Appellant’s] bedroom, detectives 

recovered marijuana, a digital scale, and plastic baggie[s, known 

colloquially as “diapers” or sandwich bags with the corners 

removed]. The marijuana was packaged in [the removed corners 

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1

 35 P.S. §§ 780-113(a)(16), 780-113(a)(30), and 780-113(a)(32), 

respectively.
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of baggies]. Detectives also recovered a holster for a firearm in 

that bedroom. They additionally recovered a firearm, ammunition 

for the firearm and empty [] bags from a duffel bag concealed in 

a cubbyhole in the hallway outside of the bedroom. [Appellant] 

admitted that all of the items, except the firearm, belonged to 

him. He told detectives that he was not aware that a firearm was 

in the residence. Detective William Churilla testified as an expert 

in this case. He opined that, based on the evidence recovered 

from [Appellant’s] bedroom, [Appellant] possessed the marijuana 

with the intent to deliver it. 

Trial Court Opinion, 8/16/2019, at 1-2 (footnote incorporated).

The Commonwealth charged Appellant with the aforementioned crimes, 

as well as persons not to possess a firearm and receiving stolen property. 

Following a bench trial on February 13, 2019, the trial court found Appellant 

guilty of the narcotics related crimes, but acquitted him of the firearm offense 

and receiving stolen property. The trial court sentenced Appellant to 16 to 60 

months of imprisonment for possession with intent to deliver marijuana. The 

simple possession conviction merged for sentencing purposes. The trial court 

imposed no further penalty on the paraphernalia conviction. On February 22, 

2019, Appellant filed a timely post-sentence motion asking the trial court to 

reconsider his sentence. By order entered on February 26, 2019, the trial 

court denied relief. This timely appeal resulted.2

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2

 Appellant filed a timely notice of appeal on March 28, 2019. On the same 

day, the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely on April 18, 2019. The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on August 16, 2019.
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On appeal, Appellant presents the following issue3for our review:

I. Is the sentence imposed of [16] to [60] months of 

incarceration in this case manifestly excessive, 

unreasonable, contrary to the dictates of the Sentencing 

Code and an abuse of the sentencing court’s discretion? 

Specifically, did the sentencing court fail to put adequate 

reasons on the record for imposing a five-year state 

sentence which involved possession of less than a pound of 

marijuana? Further, when a court fails to mention at all any 

rehabilitative needs of the defendant, as well as other 

factors under 42 Pa.C.S.A. § 9721(b), is the sentence 

imposed not an abuse of that court’s discretion? Finally, 

even if the minimum sentence is within the sentencing 

guidelines, is not the imposition of the maximum sentence 

that is almost four times more than the minimum too great 

a punishment under the circumstances of this case?

Appellant’s Brief at 6.

Appellant claims that “his sentence is manifestly unreasonable because, 

while the minimum sentence imposed is within the standard range of the 

sentencing guidelines, the maximum sentence imposed is almost four times 

as long and the circumstances of this case do not justify such a harsh 

sentence.” Id. at 13. In sum, Appellant states:

The sentence imposed by a court with an intense focus on the fact 

that [Appellant] is a big, strong guy who shouldn’t need to be a 

drug dealer. This is the single fact underpinning [Appellant’s] 

sentence as a whole. The court makes absolutely no mention of 

[Appellant’s] current family situation. Nor did the court discuss 

[Appellant’s] work history, health needs, or periodic 

homelessness. The sentencing court also did not mention any of 

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3

 Appellant also presented a challenge to the sufficiency of the evidence in 

his Rule 1925(b) concise statement, but does not raise that issue on appeal. 

We will not address it. See Commonwealth v. Heggins, 809 A.2d 908, 912 

n.2 (Pa. Super. 2002) (“[A]n issue identified on appeal but not developed in 

the appellant’s brief is abandoned and, therefore, waived.”).
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[Appellant’s] rehabilitative needs. Instead, the court focused only 

upon the fact that [Appellant] made life choices that the judge did 

not understand.

While [Appellant] admits the serious impact on society due to 

illegal drugs, the reasons listed by the trial court show an 

excessive emphasis on retribution which is disfavored[.] It 

appears that the trial court determined that it would wash its 

hands of [Appellant], who should now be supervised by state 

authorities. Most troubling is the lack of any consideration for 

[Appellant’s] rehabilitative needs. Therefore, while the sentence 

is technically a standard range sentence based upon the minimum 

sentence, it is nonetheless clearly unreasonable due to the court’s 

abject failure to consider [] mitigating factors. 

Id. at 23-24.

We have held that “sentencing is a matter vested in the sound discretion 

of the sentencing judge, whose judgment will not be disturbed absent an 

abuse of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. 

Super. 2001). Moreover, pursuant to statute, Appellant does not have an 

automatic right to appeal the discretionary aspects of his sentence. See 42 

Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for 

permission to appeal. Id. As this Court has explained:

[t]o reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether appellant 

has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) 

whether the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence, Pa.R.Crim.P. [708(E)]; 

(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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
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In this case, Appellant complied with the first three requirements as set 

forth above. Appellant filed a motion for reconsideration, a timely notice of 

appeal, and included a statement pursuant to Pa.R.A.P. 2119(f) in his 

appellate brief. Moreover, Appellant presents a substantial question for our 

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

2014) (“this Court has held that an excessive sentence claim—in conjunction 

with an assertion that the court failed to consider mitigating factors—raises a 

substantial question”).

We previously stated:

the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of 

the offense as it relates to the impact on the life of the victim 

and on the community, and the rehabilitative needs of the 

defendant.

42 Pa.C.S.A. § 9721(b). Furthermore, when sentencing a 

defendant, the trial court is required to consider the sentencing 

guidelines. See Commonwealth v. Tobin, 89 A.3d 663, 669 n. 

4 (Pa. Super. 2014) (citation omitted). In [a] case [where a 

defendant] was sentenced within the sentencing guidelines[,] we 

may only vacate his sentence if [the] “case involves circumstances 

where the application of the guidelines would be clearly 

unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).

Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super. 2016). 

Moreover, we note “[t]he [sentencing] court is not required to parrot the 

words of the Sentencing Code, stating every factor that must be considered 

under Section 9721(b), [however,] the record as a whole must reflect due 

consideration by the court of the statutory considerations at the time of 
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sentencing.” Commonwealth v. Johnson–Daniels, 167 A.3d 17, 26 (Pa. 

Super. 2017) (internal citation and quotations omitted).

A close examination of the sentencing transcript reveals that the trial 

court addressed Appellant’s rehabilitative needs at sentencing. Although the 

trial court did not use the phrase “rehabilitative needs,” there is no 

requirement that it must. Instead, the trial court discussed Appellant’s 

criminal history and opined that less restrictive alternatives to incarceration 

had proven unsuccessful and, as a result, a term of incarceration at a state 

correctional facility was warranted. First, the trial court noted that Appellant 

was on probation for criminal trespass at the time he was arrested in this 

matter. N.T., 2/13/2019, at 69-70. The trial court judge presided over the 

prior criminal trespass case and was aware of it when sentencing Appellant in 

this matter. Id. at 70. Next, before sentencing in this case, Appellant’s 

probation officer told the trial court that Appellant did not make himself 

available for supervision and, as a result, they were unable to determine if 

Appellant complied with the terms of his probation. Id. Thereafter, when

sentencing Appellant, the trial court specified:

[Appellant] has not cooperated with County probation. He 

commits felonies while on probation for a felony while he’s making 

himself unavailable to [the] [P]robation [Department]. Therefore, 

he has a prior [record] score of five and it is [the trial court’s] view 

that trying to supervise the defendant on County probation 

simply does not work, so we’re issuing a state sentence. 

Id. at 73-74 (emphasis added). Finally, the trial court also stated on the 

record: 
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I'm sorry to do this to you, sir but you just can't keep doing 

this. You can't keep committing felonies and not 

responding to probation. We can't accept it anymore.

Id. at 75. 

Based upon all of the foregoing, we conclude that the trial court 

considered Appellant’s rehabilitative needs to conclude that less restrictive 

alternatives to incarceration were ineffective in rehabilitating Appellant and, 

thus, a term of incarceration was justified. The trial court sentenced Appellant 

within the standard range of the sentencing guidelines, which was not “clearly 

unreasonable” under 42 Pa.C.S.A. § 9781(c)(2). Thus, we discern no abuse 

of discretion in sentencing Appellant. Accordingly, there is no merit to 

Appellant’s sole appellate issue. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/20/2020