J-S17015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

ROY M. SMITH,

Appellant No. 4089 EDA 2017

Appeal from the Judgment of Sentence Entered May 11, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003869-2016

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 3, 2019

Appellant, Roy M. Smith, appeals from the judgment of sentence of an 

aggregate term of 7 to 22 years’ imprisonment, imposed after he was 

convicted of one count each of possession of a firearm by prohibited person 

(18 Pa.C.S. § 6105(a)(1)), firearm not to be carried without a license (18 

Pa.C.S. § 6106(a)(1)), and carrying a firearm on public streets or public 

property in Philadelphia (18 Pa.C.S. § 6108). Appellant solely challenges the 

discretionary aspects of his sentence. We affirm. 

The underlying facts of this case have been summarized by the trial 

court as follows:

On April 1, 2016, at approximately 2:05 a.m., Lieutenant Medina 

(first name not given) was on routine patrol and stopped at a 

traffic light at the 4700 block of Bleigh and Torresdale Avenues in 

Northeast Philadelphia when he observed [Appellant] adjust his 

pants[,] thereby causing a silver handgun to fall from his 
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waistband. [Appellant] then picked up the firearm and put it back 

into his waistband. Lieutenant Medina radioed for back-up and 

effectuated an arrest of [Appellant]. A David Industries .32 caliber 

semiautomatic gun loaded with one magazine of six live rounds 

was recovered from [Appellant]. It was later revealed that 

[Appellant] had been intoxicated and had earlier attempted to get 

into a bar when the firearm had dropped out of his pants. No 

injuries to patrons had resulted. 

Trial Court Opinion (“TCO”), 6/18/18, at 2 n.1.

On March 13, 2017, Appellant entered an open plea of nolo contendere

to the crimes stated supra. The trial court accepted his plea and deferred 

sentencing pending a pre-sentence investigation (“PSI”) report and mental 

health evaluation. Id. at 1-2. Appellant was sentenced to an aggregate term 

of 7 to 22 years’ imprisonment on May 11, 2017.1 On May 22, 2017, Appellant 

filed a motion for reconsideration of his sentence, which was denied by the 

trial court on November 16, 2017. 

Appellant filed a timely notice of appeal on December 18, 2017, followed 

by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Herein, Appellant presents the following sole issue 

for our review: 

Did not the lower court err and abuse its discretion by imposing 

an unreasonable and excessive sentence, taking into 

consideration the circumstances of the case, where [Appellant] 

pled no contest to the offenses and where the court imposed 

____________________________________________

1 Appellant was sentenced to consecutive terms of 31⁄2 to 10 years’ 

incarceration on the charge of possession of a firearm by a prohibited person, 

21⁄2 to 7 years’ incarceration on the charge of carrying a firearm without a 

license, and 1 to 5 years’ incarceration on the charge of carrying a firearm on 

a public street or public property in Philadelphia. Id. at 2 n.2. 
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consecutive sentences for essentially the same criminal act of 

possession of a firearm?

Appellant’s Brief at 3. 

Appellant’s single issue challenges the discretionary aspects of his 

sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant challenging 

the discretionary aspects of his sentence must invoke this Court’s 

jurisdiction by satisfying a four-part test:

We 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.[] § 9781(b).

Objections to the discretionary aspects of a sentence are generally 

waived if they are not raised at the sentencing hearing or in a 

motion to modify the sentence imposed.

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

and internal quotations omitted). 

Here, it is clear that Appellant has satisfied the first three requirements 

of the four-part Moury test. Appellant filed a timely notice of appeal, properly

preserved his claim in his post-sentence motion, and included a separate, 

concise Rule 2119(f) statement in his appellate brief in compliance with the 

Pennsylvania Rules of Appellate Procedure. We, therefore, proceed to 

determine whether Appellant has raised a substantial question to meet the 

fourth requirement of the Moury test. 
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As we explained in Moury:

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. 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. 

Id. at 170 (citations and internal quotations omitted). “[T]his Court does not 

accept bald assertions of sentencing errors. An appellant must articulate the 

reasons the sentencing court’s actions violated the sentencing code.” Id.

(internal citations omitted). 

In his Rule 2119(f) statement, Appellant broadly contends that his 

aggregate sentence is “excessive under the circumstances of [his] case[.]” 

Appellant’s Brief at 12. While he acknowledges that each individual sentence 

is within the statutory sentencing guidelines, Appellant argues that his 

maximum aggregate sentence far exceeds the maximum sentence that could 

have been imposed for any one of the individual charges for which he was 

convicted. Appellant also suggests that his maximum sentence is extreme 

“for what was essentially one act,” which constituted “a nonviolent possessory 

offense.” Id. at 12-13.

Based on Appellant’s Rule 2119(f) statement, we conclude that 

Appellant has failed to raise a substantial question. Appellant does not claim 

that any of the individual sentences imposed for his three convictions were 

excessive or in violation of the sentencing code. His excessiveness claim is 

solely premised, rather, on the fact that the court imposed his sentences 
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consecutively. “Under 42 Pa.C.S.[] § 9721, the court has discretion to impose 

sentences consecutively or concurrently and, ordinarily, a challenge to this 

exercise of discretion does not raise a substantial question.” Moury, 992 A.2d 

at 171. See also Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. 

Super. 2018) (noting that this Court has consistently recognized that 

excessiveness claims premised on the imposition of consecutive sentences do 

not raise a substantial question for our review). “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.” Moury, 992 A.2d at 171-72 (emphasis added). 

Instantly, Appellant has failed to demonstrate that such extreme 

circumstances exist.2

Appellant was convicted of three distinct firearms charges, for illegally 

possessing a loaded gun on the public streets of Philadelphia, while intoxicated 

and attempting to enter a bar. Appellant is not entitled to a “volume discount” 

on his multiple convictions by the imposition of concurrent sentences. See 

____________________________________________

2 Appellant’s citation to Commonwealth v. Dodge, 957 A.2d 1198 (Pa. 

Super. 2008), in support of his position that his challenge to the

consecutiveness of his sentences raises a substantial question for the purpose 

of appellate review is inapposite. The defendant in Dodge was sentenced to 

an aggregate term of 581⁄2 to 124 years’ imprisonment after he was convicted 

of numerous, largely property offenses. While the challenge to the sentencing 

court’s exercise of discretion in Dodge was viewed as raising a substantial 

question, the facts in the present case simply do not inure such a finding. See 

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010) 

(recognizing Dodge as an “extreme case”). 
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Commonwealth v. Foust, 180 A.3d 416, 434-35 (Pa. Super. 2018). The 

record also indicates that Appellant has an extensive history of violent crime. 

Based on the foregoing, we do not consider Appellant’s sentence to be unduly 

harsh and, therefore, we conclude that Appellant has failed to raise a 

substantial question. 

Even if we were to determine that Appellant has raised a substantial 

question, we would conclude his allegations are meritless. 

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. 

***

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

particular circumstances of the offense and the character of the 

defendant. In particular, the court should refer to the defendant’s 

prior criminal record, his age, personal characteristics and his 

potential for rehabilitation. Where the sentencing court had the 

benefit of a [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. Further, where a sentence is within the 

standard range of the guidelines, Pennsylvania law views the 

sentence as appropriate under the Sentencing Code. 

Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (internal 

citations and quotation marks omitted).
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Instantly, Appellant acknowledges that his three convictions do not 

merge for sentencing purposes.3 Yet, Appellant insists that “the lower court 

punished [him] three times for what was essentially one act—possession of a 

handgun.” Appellant’s Brief at 17. Contrarily, as stated supra, each of 

Appellant’s convictions required proof of elements separate and distinct from 

possessing a firearm, i.e., conviction of an enumerated offense, lack of a valid 

license, carrying a firearm on the public streets or public property of 

Philadelphia. Thus, Appellant’s argument would be deemed meritless. 

“Although Pennsylvania’s system stands for individualized sentencing, 

the court is not required to impose the ‘minimum possible’ confinement. 

Generally, Pennsylvania law affords the sentencing court discretion to impose 

its sentence concurrently or consecutively to other sentences being imposed 

at the same time or to sentences already imposed.” Radecki, 180 A.3d at

____________________________________________

3 Pursuant to 42 Pa.C.S. § 9765, “[n]o crimes shall merge for sentencing 

purposes unless the crimes arise from a single criminal act and all of the 

statutory elements of one offense are included in the statutory elements of 

the other offense.” See also Commonwealth v. Dixon, 997 A.2d 368, 381-

82 (Pa. Super. 2010) (affirming that sentences for violations of Section 

6105(a) and Section 6106(a) are not appropriate for merger, whereas each 

section contains a statutory element that the other does not: “Under § 6105, 

the Commonwealth need not prove that the defendant lacks a valid license. 

Rather, it must only prove that [the defendant] was convicted of an 

enumerated offense. Similarly, Section 6106(a) contains a statutory element 

that § 6105(a) does not: namely, lack of a valid license.”). Moreover, a 

violation of Section 6108 requires a defendant to carry a weapon on the public 

streets or public property of Philadelphia, a requirement not present under 

Sections 6105 or 6106. See Commonwealth v. Baldwin, 985 A.2d 830, 

83-34 (Pa. Super. 2009); 18 Pa.C.S. §§ 6105, 6106, 6108. Thus, merger is 

prohibited in this case. 
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470 (internal citations and quotation marks omitted). An appellant is not 

entitled to a “volume discount” for his crimes by having all sentences run 

concurrently. See Commonwealth v. Hoag, 65 A.2d 1212, 1214 (Pa. Super. 

1995). 

Not only did the trial court have the benefit of a PSI in the instant 

matter, it expressly stated that it considered all of the appropriate relevant 

factors in the following portion of its Rule 1925(a) opinion:

Appellant had ... a prior record score of five (5) and was sentenced 

to an aggregate minimum of seven (7) years of imprisonment for 

carrying a firearm when he was ineligible, unlicensed, and in 

Philadelphia. The aggregate sentence was within the range 

recommended by the guidelines and the statute. 

Moreover, the transcribed record reflects that the 

recommended sentencing guidelines and all relevant sentencing 

factors as required by 42 Pa.C.S. § 9721(b) had been duly 

considered before imposition of sentence. Having previously 

directed the completion of [a PSI] from the Philadelphia Probation 

Department and [a] [m]ental [h]ealth [e]valuation by the First 

Judicial District Mental Health Unit on the date of entry of the plea, 

this [c]ourt incorporated and referenced thorough consideration 

[all] of the data contained within each assessment. The protection 

of the public as well as the gravity of the offense as it relates to 

the impact on the community were prioritized. Furthermore, this 

[c]ourt factored into its decision, Appellant’s rehabilitative needs 

or prospects of rehabilitation. 

***

In the instant matter, individualized[,] consecutive[,]

standard[-range] sentences upon [Appellant] were imposed only 

after careful consideration of all relevant sentencing factors 

including the paramount need for protection of the public, the 

gravity of the offense, and Appellant’s poor prospect of 

rehabilitation.... The imposition of consecutive terms for separate 

crimes with different statutory elements of proof constituted a 

proper exercise of sentencing discretion. 
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TCO at 8-10. 

The following colloquy of the court, during which it was addressing 

Appellant at the close of the sentencing hearing, further evidences its proper 

consideration of the appropriate factors before sentencing Appellant: 

THE COURT: I did review all of the reports in reference to you, 

sir, and I took particular note with respect to the somewhat 

unusual factual scenario that brought you before this [c]ourt. I’m 

very, very concerned about you because based upon the 

information provided to me, ... it’s apparent to me that you are a 

potential danger both to yourself as well as to other folks around 

you. And your contact with the criminal system has been over a 

long period of time and[,] at times[,] quite violent, which is 

obviously a concern. 

You have a significant history of mental health since your teen 

years. At various points in time, you were diagnosed [with] either 

post-traumatic stress ... and/or bipolar disorder. You reported to 

the evaluators a horrendous experience growing up. Your 

substance abuse and alcohol abuse included ... daily use[] of 

alcohol to an extreme degree, marijuana, cocaine. The fact that 

at age 48 you began smoking K2 because you were on probation 

to hide it is indicative of what’s going on with you. 

I did note some of your arrests were because you were so 

intoxicated. Your juvenile record began in 1982 at the age of 15 

for which you were ... adjudicated delinquent of ... rape, which was 

extremely violent. I note with some dismay that there was no 

following immediate commitment of you. They simply placed you 

on intensive probation. 

Your adult record began in 1988[,] shortly thereafter[,] at the age 

of 21. You have had 21 arrests, 6 convictions, 4 commitment[s],

1 commitment on contempt of court – that’s the least of your 

difficulties – and 1 conviction of [a] summary offense. The 

conviction for the aggravated assault did involve your use of [a]

straight razor to slash the victim’s head, face, and chest requiring 

50 stitches to close and severe blood loss [was] suffered. 

Within your incarceration, ... I note that there were at least two 

misconducts, including threatening an employee with harm for 

which you received [] 60 days of disciplinary custody. Your 
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respective moves throughout the prison system are noted. The 

probation officer noted that you are a significant risk for incurring 

future offenses and violating whatever conditions are imposed by 

the [c]ourt. I think that’s putting it mildly. You have previously 

violated the court supervision with absconding and continued 

arrests and/or convictions. 

***

You’re too old for this. 

***

I mean, you’re now 49 years old, sir. I note with some great deal 

of dismay the lengthy time period. I’m not talking to a young fella 

at the age of 15 who is a thing of the past. I’m talking to a 49-

year-old man. The last thing you should have been near is a 

firearm, let alone trying to get into a bar with one. 

The risk and catastrophe matter.... Well, long story short, my 

prevailing thought process at this point in time has to be 

protection of the public from you. 

I note that this offense occurred while you were under supervision 

at Horizon House to the extent as described by your caseworker. 

That wasn’t good enough. 

N.T. Sentencing, 5/11/17, at 17-20. 

After careful review of the record, we are convinced that the court 

fashioned an individualized sentence taking into account all of the statutory 

factors, the above-stated circumstances of Appellant’s current case, and his 

criminal history, as well as the significant risk that Appellant poses to public 

safety when not incarcerated. Thus, we would ascertain no abuse of discretion 

in the ultimate sentence imposed by the court. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/19