J-S39026-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DOMENIQUE JAMES LEWIS,

Appellant

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 No. 1673 WDA 2016

Appeal from Judgment of Sentence July 26, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0008184-2010

BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 10, 2017

Dominique James Lewis appeals from the judgment of sentence of 

thirty-three and one-half to sixty-seven years incarceration, imposed upon 

remand following our prior holding that Appellant received a constitutionally 

infirm sentence under Alleyne v. United States, 133 S.Ct. 2151 (2013). 

We affirm.

We described the facts underlying Appellant’s criminal conviction in our 

memorandum opinion on direct appeal as follows:

At trial, Megan [Wilsher] testified that on February 26, 2010, 

while Lewis was sitting in her living room, he stood up, pulled 

out a gun, smiled at her, and fired at her. [Wilsher] testified 

Lewis shot her in the face, and after she fell, he shot her again. 

Wilsher lost her right eye as a result of the shooting. In 
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corroboration of this testimony, the Commonwealth presented 

evidence that Lewis's fingerprints were found on a Coke can 

recovered from the scene. 

Furthermore, the Commonwealth, through the testimony of 

Detective Scott Evans, introduced a recorded statement made by

Lewis to police, in which he admitted that on February 26, 2010, 

he had engaged in a struggle with Brett Quinn over a gun that 

discharged in the living room; he took the gun and fired at Quinn 

multiple times, chased him and took his chain and watch; 

returned to the house where he took $400 to $500 dollars from 

Wilsher's purse, as well as her cellular phone; and then disposed 

of the gun.

Commonwealth v. Lewis, 358 WDA 2012, at 6-7 (Pa.Super. 2013) 

(unpublished memorandum, citations omitted, brackets in original). 

Following a jury trial, Appellant was convicted of one count of carrying 

a firearm without a license, and two counts each of the following crimes: 

criminal attempt – murder, aggravated assault, and robbery. The trial court 

imposed an aggregate sentence of thirty-three and one-half to sixty-seven 

years incarceration, and we affirmed his judgment of sentence. Id. Our 

Supreme Court denied further review. Commonwealth v. Lewis, 74 A.3d 

1030 (Pa. 2013). 

Appellant filed a timely PCRA petition, which was denied. On appeal, 

we sua sponte vacated and remanded for resentencing consistent with 

Alleyne, supra, due to the fact that Appellant’s sentence included the 

imposition of a mandatory minimum sentence. Upon remand, the trial court 

imposed the same aggregate sentence, albeit structured in a different 

manner. Appellant filed a post-sentence motion, which was denied. This 
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timely appeal ensued, and Appellant complied with the order to file a 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The 

trial court authored its responsive opinion and the matter is now ready for 

this Court's consideration. Appellant raises the following questions for our 

review:

I. Is the imposition of the aggregate sentence of 331⁄2 to 67 

years of incarceration manifestly excessive, unreasonable, and 

an abuse of the sentencing court’s discretion?

a. Specifically, does the aggregate sentence result in a 

manifestly excessive sentence that is wholly unreasonable and 

not in conformity to the goal of individualized sentencing, or to 

the Sentencing Code (42 Pa.C.S. § 971(b)), instead evincing 

an undue emphasis on retribution, not rehabilitation, and 

resulting in a de facto life sentence?

b. Also, was the aggregate sentence imposed an abuse of 

discretion in that the trial court refused to consider that Mr. 

Lewis’s crimes were committed when he was a juvenile of 17 

years, which requires that a distinct set of sentencing 

considerations be applied because of the diminished culpability 

of juveniles due to the biological immaturity of their brains as 

well as the greater capacity for rehabilitation of a juvenile?

Appellant’s brief at 6.

Appellant’s overarching claim challenges the length of the sentence 

imposed and therefore pertains to the discretionary aspects of his sentence. 

We apply the following standard of review:

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. Shull, 148 A.3d 820, 831 (Pa.Super. 2016) (citing 

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super 2014)). The 

right to appeal the discretionary aspects of a sentence is not absolute. To 

determine if Appellant has invoked our jurisdiction, we examine the following 

four criteria: 

(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. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing 

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)). 

Appellant filed a timely notice of appeal, preserved his issue in a postsentencing motion, and his brief complies with Pa.R.A.P. 2119(f). The 

remaining consideration is whether Appellant has presented a substantial 

question.

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.

Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super. 2013) (citing 

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

citations omitted)).
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Appellant advances two separate substantial questions. First, he avers 

that the trial court imposed the sentence based solely on the seriousness of 

the crime and failed to consider other factors. Additionally, citing Miller v. 

Alabama, 567 U.S. 460 (2012), which barred mandatory life imprisonment 

without the possibility of parole for persons under the age of eighteen at the 

time of their crimes, Appellant maintains that juveniles are “constitutionally 

different from adults for the purpose of sentencing.” Appellant’s brief at 11. 

We find that Appellant has presented a substantial question only with 

respect to the first question. 

We first dispose of Appellant’s Miller claim. Appellant avers that 

Miller requires the sentencing court to treat Appellant differently. However, 

Miller’s holding is limited to the mandatory nature of life without parole 

sentences applied to juveniles. The flaw in those schemes is that they 

“prevent the sentencer from taking account of these central considerations 

. . . these laws prohibit a sentencing authority from assessing whether the 

law's harshest term of imprisonment proportionately punishes a juvenile 

offender.” Miller, supra at 474. Appellant recognizes that Miller narrowly 

addressed only the constitutionality of imposing a mandatory life without 

parole sentence, but maintains that the “principles set forth . . . have 

implications any time that a juvenile is being sentenced.” Appellant’s brief 

at 33. 
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Appellant’s argument is a policy argument dressed up as a legal one; 

Appellant does not explain exactly what these implications are or how the 

trial court erred as a result. Apparently, Appellant interprets Miller to 

require some type of undefined juvenile discount. However, Appellant 

concedes that the trial court utilized the proper guidelines and could consider 

Appellant’s age as a factor in fashioning an individualized sentence. 

Additionally, this Court recently rejected a constitutional challenge to 

the sentencing guidelines as applied to juveniles, in which the appellant 

similarly contended that “the guidelines' primary focus on retribution does 

not adequately take into account the evolution of recent United States 

Supreme Court precedent recognizing the diminished culpability for 

juveniles.” Commonwealth v. Fortson, 2017 PA Super 162 (Pa.Super. 

2017) (published opinion, at 8). We disagreed, noting that the trial judge 

has broad discretion in sentencing matters and, therefore, is permitted to 

evaluate the individual circumstances before it, including the types of 

considerations discussed in Miller. We held that this was sufficient. 

The advisory nature of the guidelines ensures, as constitutionally 

required, that the diminished culpability of juvenile defendants is 

properly considered. In exercising its discretion, “[t]he 

sentencing court must impose a sentence that is appropriate in 

light of the individualized facts of the underlying incident.” 

Commonwealth v. Johnson, 873 A.2d 704, 709 (Pa.Super. 

2005). The court must consider aggravating and mitigating 

circumstances. “In particular, the court should refer to the 

defendant's prior criminal record, his age, personal 

characteristics and his potential for rehabilitation.” 
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Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) 

(quoting Griffin 804 A.2d at 10) (emphasis added)). 

Id. at 12-13 (some citations omitted). Therefore, we find that Appellant has 

failed to raise a substantial question with respect to this claim, and any 

argument respecting Appellant’s age must go to weighing of the various 

sentencing factors.

However, we find that Appellant has presented a substantial question 

with respect to his allegation that the imposition of consecutive sentences 

resulted in an excessive sentence, in that the trial court failed to consider 

the other required statutory considerations. Generally, a challenge to the 

trial court’s imposition of concurrent or consecutive sentences does not raise 

a substantial question. Commonwealth v. Raven, 98 A.3d 1244, 1253 

(Pa.Super. 2014). When paired with another assertion, such as the claim 

advanced herein, we have found a substantial question. “[A]n excessive 

sentence claim—in conjunction with an assertion that the court failed to 

consider mitigating factors—raises a substantial question.” Id. See also 

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013) 

(allegation that trial court focused solely on the nature of the offense 

presented a substantial question). We therefore examine the merits of his 

claim. 

Our review of the discretionary aspects of sentencing is statutorily 

limited by 42 Pa.C.S. § 9781, to wit:
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(c) Determination on appeal. — The appellate court shall vacate 

the sentence and remand the case to the sentencing court with 

instructions if it finds:

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence 

imposed by the sentencing court.

42 Pa.C.S. § 9781(c). Section 9781(d) provides that in reviewing the 

record, we must take into account the following:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

The parties do not dispute the calculation of the applicable guidelines. 

Appellant’s prior record score was five, and the offense gravity score for the 

attempted homicide charges was fourteen. Thus, the standard range at 

those counts called for a minimum sentence between 210 and 240 months, 

with the latter number representing the applicable statutory maximum. The 

mitigated range called for a sentence of 198 months. Appellant received 

consecutive sentences of 180 to 360 months at each of these charges, which 
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is below the mitigated range. Additionally, Appellant received a consecutive 

statutory maximum sentence of forty-two to eighty-four months 

incarceration at the firearms charge, which was within the standard range. 

Therefore, Appellant must show that application of the guidelines would be 

clearly unreasonable.1 

In Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007), our 

Supreme Court noted that reasonableness is not defined in the statute and 

“commonly connotes a decision that is ‘irrational’ or ‘not guided by sound 

judgment.’” Id. at 963. Walls identified the two situations in which we can 

deem a sentence unreasonable. The first is if the sentencing court did not 

weigh the “general standards applicable to sentencing found in Section 

9721[.]” Id. at 964; see 42 Pa.C.S. § 9721(b) (In determining whether to 

impose a sentence of imprisonment, “the court shall follow the general 

principle that 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.”). The other situation is where the 

 

1

 Technically, Appellant’s aggregate sentence was outside of the guideline 

ranges, since his sentence fell below the total mitigated range at the three 

charges. However, the downward departure was obviously to Appellant’s 

benefit and we therefore apply the 42 Pa.C.S. § 9781(c)(2) standard which 

applies to challenges to sentences within the sentencing guidelines. 
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sentence is deemed unreasonable after review of the four elements provided 

by 42 Pa.C.S. § 9781(d).

Presently, Appellant complains that the sentencing court failed to 

impose an individualized sentence as required under § 9721(b), in that the 

judge’s stated reasons discussed only the heinous nature of the crime, 

Appellant’s inability to apologize, and Ms. Wilsher’s injuries. According to 

Appellant, the record demonstrates that the court focused solely on 

retribution and punishment. 

While we agree that the sentencing transcript indicates that the court 

largely directed its remarks at those points, we disagree that the trial court 

failed to balance those considerations against the other § 9721(b) factors. 

Significantly, Appellant submitted a sentencing memorandum, in which 

Appellant’s position was fully outlined. It is presumed that jurists do not 

willfully ignore pertinent information. “Where pre-sentence reports exist, we 

shall continue to 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.” Commonwealth v. Devers, 

546 A.2d 12, 18 (Pa. 1988). 

In support of reversal, Appellant cites Commonwealth v. 

Coulverson, 34 A.3d 135 (Pa.Super. 2011), in which we vacated a sentence 

as clearly unreasonable despite the fact that the court had access to and 
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referenced a pre-sentence investigation report, and where the sentence was 

technically within the standard range. He argues that this case is like 

Coulverson in two ways: (1) the maximum sentence approaches a life 

sentence and (2) the trial court had “[a]n intense focus on the crime’s 

impact on the victim to the exclusion of all other factors.” Appellant’s brief 

at 29-30. 

We find that Appellant’s reliance upon Coulverson is misplaced. 

Therein, the trial court’s maximum sentence was the maximum allowed by 

law. Our review of the trial court’s stated reasons for the sentence 

“reveal[ed] scant consideration of anything other than victim impact and the 

court’s impulse for retribution on the victims’ behalf.” Id. at 148. We 

observed that “the term of the maximum sentence . . . also bear[s] on the 

extent to which sentencing norms are observed and an appropriate sentence 

imposed.” Id. Thus, the trial court’s sentencing comments, when paired 

with the maximum sentence, demonstrated that the sentence was not 

individualized, and, as a result, clearly unreasonable.

Appellant maintains that his sentence was similarly flawed, as he will 

likely spend the remainder of his life in prison if he serves the maximum 

sentence. We find that Coulverson is readily distinguishable on this score. 

We emphasized that the appellant therein “did not mount a challenge to the 

minimum aggregate sentence.” Id. at 144. Hence, the challenge was to the 

maximum period of incarceration, which was the statutory maximum. Here, 
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the trial court imposed a maximum sentence that was twice the length of the 

minimum, which was the lowest period permitted by statute. 42 Pa.C.S. § 

9756(b)(1) (minimum sentence of confinement shall not exceed one-half of 

the maximum). Therefore, unlike the appellant in Coulverson, Appellant is 

in fact attempting to mount a challenge to the minimum sentence.2 

Additionally, we do not find that the trial judge’s comments regarding 

the gravity of the crime and Appellant’s inability to apologize to the court’s 

satisfaction demonstrate an excessive focus on punitive measures. When

imposing the original sentence, Appellant’s counsel referenced mitigating 

circumstances and the trial judge asked for any corrections or additions to 

the pre-sentence report. N.T. Sentencing I, 9/8/11, at 2. Thus, the original 

sentence already reflected a weighing of those factors. In context, the trial 

court’s remarks at resentencing were effectively an invitation for Appellant 

to demonstrate why the trial court should revisit its original sentence, which 

was vacated on technical grounds. In other words, the trial court sought an 

explanation for why it should deviate from its original sentence. See 

Moury, supra at 173 (trial court did not improperly rely upon appellant’s 

decision to stand trial when imposing sentence, in context “the court sought 

 

2 We emphasize that the sentencing court imposed a sentence below the 

mitigated range on each attempted murder charge. Were the court 

motivated by purely punitive desires, it was within its discretion to impose a 

harsher sentence.
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to understand why it should accept [a]ppellant’s apology and acceptance of 

responsibility as a reason to deviate from the court’s regular sentencing 

procedures.”).

The trial court framed its discussion of repentance in terms of 

assessing Appellant’s rehabilitative prospects as follows: 

They ought to start rehabilitation the day they get [to prison]. 

They assess people sort of the way I am, where is this person on 

a continuum of narcissism? Where is this person on a continuum 

of repentance? . . . Does he understand what he did to get 

[himself] exiled from society? Does he understand this woman’s 

pain? Does he understand the disabilities, the limitations on 

what it does to her career, what it does to her life?

N.T. Sentencing II, 7/26/16, at 10-11. In contrast to Coulverson, the 

sentencing court in the instant case provided Appellant the opportunity to 

address those issues and gave him a chance to convince the court that a 

lower sentence was warranted. Id. at 13-14. The sentencing judge “is not 

required to parrot the words of the Sentencing Code . . . the record as a 

whole must reflect due consideration by the court of the statutory 

considerations.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.Super. 

2008) (citations omitted). We are satisfied that the record as a whole 

reflects due consideration of the § 9721(b) factors and we decline to deem 

the sentence unreasonable on that basis. 

Nor do we find that this sentence is clearly unreasonable pursuant to § 

9721(b). First, a sentence that is within the standard range of the 

guidelines, let alone below the mitigated range, is generally viewed as 
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appropriate under the Sentencing Code. Moury, supra at 171. Appellant’s 

only real complaint regarding the length of his sentence is the 

aforementioned Miller argument, which we have rejected, in conjunction 

with an argument that “[a] sentence for third-degree homicide could be 

shorter than the sentence [Appellant] received.” Appellant’s brief at 29. 

This point diminishes the nature of Appellant’s crimes. Third-degree 

homicide, unlike attempted murder, is not a specific-intent crime. Appellant 

was found to have intended to kill both victims. He twice shot a woman who 

had invited him into her home, for apparently no reason whatsoever. He 

chased his friend, who had accompanied him to the victim’s home, and tried 

to kill him as well. These brutal acts justified a lengthy sentence, and 

Appellant, who managed to amass a prior record score of five by age 

seventeen, failed to convince the court that a lesser sentence was 

warranted. After review of the four 42 Pa.C.S. § 9781(d) factors, we uphold 

that sentence, and we, therefore, find no abuse of discretion. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/10/2017