J-S52027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CUONG PHAM

Appellant No. 1958 EDA 2015

Appeal from the Judgment of Sentence Entered March 23, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0014307-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,*JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016

Appellant, Cuong Pham, appeals from the March 23, 2015 judgment of 

sentence imposing six to twelve months of county incarceration for 

patronizing a prostitute (18 Pa.C.S.A. § 5902(e)). We affirm. 

The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion: 

On December 9, 2010, at about 12:30 a.m., Philadelphia 

Police officer Stephanie Rosenbaum and other officers were in 

the 1800 block of East Sergeant Street investigating activity 

related to prostitution because of a string of murders of 

prostitutes in the area. Officer Rosenbaum’s role was to act as a 

decoy. While doing so, a brown Nissan Maxima pulled up to her 

and the driver, the Appellant herein, told the officer that he 

wanted a “blowjob.” Officer Rosenbaum asked Appellant how 

much he was willing to pay and he said, “$20.00.” Officer 

Rosenbaum contacted members of her back up team who placed 

then [sic] Appellant then [sic] arrest. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellant testified in his own defense. He stated that the 

night of the incident he intended to visit a Vietnamese 

handyman who he wanted to hire to remove Appellant’s 

property. According to Appellant, while looking for a parking 

spot, a woman approached and asked him what he wanted and if 

he had any money. He asked her what she wanted and told her 

to leave. Appellant denied that he was looking for oral sex that 

night or that he asked the officer for a blowjob, adding that his 

wife was in the car when the officer approached but had exited 

to meet the handyman before he was arrested. 

Jane Huynh, Appellant’s wife, also testified in his defense. 

She indicated that on the night of her husband’s arrest, she 

drove to the area where the incident occurred to meet her 

husband who was planning to meet with a handyman. When 

Appellant arrived, she entered the passenger side back seat of 

Appellant’s car, which had a large coffee pot and tools partially 

obscuring her. While her husband was searching for a parking 

spot, a woman approached the car and said something to 

Appellant. 

Trial Court Opinion, 1/21/16, at 2-3 (record citations omitted). 

Appellant’s case proceeded to a two-day jury trial concluding on June 

6, 2012. The trial court imposed six to twelve months of county 

incarceration, and Appellant appealed. The Commonwealth conceded that a 

new trial was appropriate given the prosecutor’s comments on Appellant’s 

post-arrest silence. After a March 23, 2015 bench trial, the trial court found 

Appellant guilty of patronizing a prostitute and once again sentenced him to 

serve six to twelve months of county incarceration. In this timely appeal, 

Appellant challenges the weight and sufficiency of the evidence supporting 

his conviction. Appellant also argues the prosecutor committed misconduct 

by misrepresenting several facts during closing argument. 
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The following standard governs our review of the sufficiency of the 

evidence: 

Our standard of review of sufficiency claims requires that 

we evaluate the record in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. Evidence will be 

deemed sufficient to support the verdict when it establishes each 

material element of the crime charged and the commission 

thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty, and may sustain its burden by means of 

wholly circumstantial evidence[.] [...] Significantly, [we] may 

not substitute [our] judgment for that of the factfinder; if the 

record contains support for the convictions they may not be 

disturbed.

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005) 

(internal citations and quotation marks omitted), appeal denied, 887 A.2d 

1239 (Pa. 2005). 

Section 5902 defines the offense of patronizing a prostitute as follows: 

(e) Patronizing prostitutes.--A person commits the 

offense of patronizing prostitutes if that person hires a prostitute 

or any other person to engage in sexual activity with him or her 

or if that person enters or remains in a house of prostitution for 

the purpose of engaging in sexual activity.

18 Pa.C.S.A. § 5902(e). 

Officer Rosenbaum’s testimony clearly establishes that Appellant asked 

Officer Rosenbaum for oral sex and offered to pay her $20.00. Appellant 

argues that Officer Rosenbaum’s testimony is not sufficient because both 

Appellant and his wife testified that he did not solicit oral sex. Appellant’s 

argument is a challenge to Officer Rosenbaum’s credibility, a matter strictly 
J-S52027-16

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within the province of the finder of fact. Commonwealth v. Gibbs, 981 

A.2d 274, 282 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010). 

Furthermore, a challenge to witness credibility goes to the weight rather 

than sufficiency of the evidence. Id. We reject Appellant’s sufficiency of the 

evidence claim for the reasons stated in the trial court’s January 21, 2016 

opinion.1 

Next, Appellant challenges the weight of the evidence. Rule 607 of the 

Pennsylvania Rules of Criminal Procedure requires an appellant to preserve 

this issue in a timely motion either prior to or post-sentence. Pa.R.Crim.P. 

607(A). Appellant concedes that he failed to preserve his weight of the 

evidence argument in accordance with Rule 607. Appellant’s brief at 24. 

We therefore will not address this issue on the merits. 

____________________________________________

1

 The Dissent argues that Appellant’s offer of $20.00 for oral sex was not 

legally sufficient to constitute a violation of § 5902(e). We conclude 

Appellant has not preserved that issue. In arguing that he did not “hire” a 

prostitute, Appellant invites this Court to credit his testimony over that of 

Officer Rosenbaum. Appellant’s brief does not address the proper 

construction of § 5902(e) as applied to the facts found by the jury. That is, 

he does not offer legal analysis of whether an offer of money for sex is a 

“hire” under § 5902(e). We decline to address an issue of statutory 

construction—and possibly an issue of first impression—without advocacy 

from Appellant. We are not free to reverse the trial court sua sponte on 

non-jurisdictional grounds. In re Smith, 874 A.2d 131, 137 n.5 (Pa. Super. 

2005) (“We may not, with limited exceptions not applicable herein, sua 

sponte address issues not raised by the parties.”). In finding this issue 

preserved, the Dissent relies on portions of Appellant’s brief in which 

Appellant argues that no “hire” occurred under Appellant’s version of the 

facts. These arguments however, attempt to argue credibility that does not 

preserve the issue of statutory construction for our review. 
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Finally, Appellant argues the prosecutor engaged in misconduct by 

mischaracterizing some of Appellant’s testimony. 

Our standard of review for a claim of prosecutorial 

misconduct is limited to whether the trial court abused its 

discretion. In considering this claim, our attention is focused on 

whether the defendant was deprived of a fair trial, not a perfect 

one. 

[A] prosecutor’s arguments to the jury are [generally] not 

a basis for the granting of a new trial unless the unavoidable 

effect of such comments would be to prejudice the jury, forming 

in their minds fixed bias and hostility towards the accused which 

would prevent them from properly weighing the evidence and 

rendering a true verdict.

A prosecutor must have reasonable latitude in fairly 

presenting a case to the jury and must be free to present [his] 

arguments with logical force and vigor. The prosecutor is also 

permitted to respond to defense arguments. Finally, in order to 

evaluate whether the comments were improper, we do not look 

at the comments in a vacuum; rather we must look at them in 

the context in which they were made.

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (internal 

citations and quotation marks omitted), appeal denied, 40 A.3d 1236 (Pa. 

2012). Appellant’s argument consists of a single paragraph unsupported by 

citation to the record or governing legal precedent, in violation of Pa.R.A.P. 

2119(b) and (c). Appellant’s Brief at 38-39. Regardless of this deficiency, 

we conclude Appellant’s argument lacks merit for the reasons stated in the 

trial court’s January 21, 2016 opinion. In particular, the trial court noted 

that the alleged misconduct did not prejudice Appellant. “This Court submits 

that it did not give much, if any, credence to the arguments here complained 

of because Appellant presented plausible explanations for the apparent 
J-S52027-16

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inconsistencies in his testimony at both of his trials and therefore, it is 

suggested that no relief be granted with respect to this claim.” 

We have concluded that each of Appellant’s arguments is lack in merit 

or waived. We therefore affirm the judgment of sentence. We direct that a 

copy of the trial court’s January 16, 2016 opinion be filed along with this 

memorandum. 

Judgment of sentence affirmed. 

President Judge Emeritus Ford Elliott joins this memorandum.

Judge Strassburger files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016
1 

I Appellant was originally tried by a jury in June of2012 and was convicted of the above offense. On April 22, 

2014, the Superior Court granted him a new trial. Commonwealth v. Pham, 2583 EDA 2012. 

to support the verdict, the verdict was against the weight of the evidence, the Court erred by 

l 925(b) statement. In his l 925(b) statement, Appellant asserts that the evidence was insufficient 

May 22, 2015. Appellant thereafter filed a notice of appeal and a court ordered Pa.RAP. 

sentence, Appellant filed a motion for reconsideration of sentence, which this Court denied on 

imposed a sentence of time served to twelve months' incarceration. Following the imposition of 

Following the verdict Appellant waived the preparation of pre-sentence reports and this Court 

Prostitutes, graded as a misdemeanor of the third degree, pursuant to 18 Pa.C.S. § 5902(e).1 

On March 23, 2015, following a waiver trial, Appellant was found guilty of Patronizing 

PROCEDURAL HISTORY 

judgment of sentence be affirmed. 

by this Court on March 23, 2015. For the reasons set forth below, it is suggested that the 

Cuong Pham (hereinafter "Appellant") appeals from the judgment of sentence imposed 

MCCAFFERY, J 

OPINION 

II 1111 II II 111111111111111 

7396266691 

CUONGPHAM 

C.'-~1-CR-0014307·201 ! Comm. v. Pham, Cuong 

Opinion 

v. : CP-51-CR-0014307-2011 

: PHILADELPHIA COURT 

: OF COMMON PLEAS 

: CRIMINAL TRIAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

FIRST IBDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION-CRIMINAL SECTION 

Circulated 08/31/2016 02:52 PM
2 

FACTUAL HISTORY 

On December 9, 2010, at about 12:30 a.m., Philadelphia Police Officer Stephanie 

Rosenbaum and other officers were in the 1800 block of East Sergeant Street investigating 

activity related to prostitution because of a string of murders of prostitutes in the area. (N.T. 

3/23/15, 12-13). Officer Rosenbaum's role was to act as a decoy. (N.T. 3/23/15, 12-13). While 

doing so, a brown Nissan Maxima pulled up to her and the driver, the Appellant herein, told the 

officer that he wanted a "blowjob." (N.T. 3/23/15, 13). Officer Rosenbaum asked Appellant 

how much he was willing to pay and he said, "$20.00" Id. Officer Rosenbaum contacted 

members of her back-up team who placed then Appellant then arrest. 

Appellant testified in his own defense. He stated that on the night of the incident he 

intended to visit a Vietnamese handyman who he wanted to hire to remove Appellant's property. 

According to Appellant, while looking for a parking spot, a woman approached and asked him 

what he wanted and if he had any money. (N.T. 3/23/15, 24-27, 39-40). He asked her what she 

wanted and told her to leave. (N.T. 3/23/15, 12-13). Appellant denied that he was looking for 

oral sex that night or that he asked the officer for a blowjob, (N.T. 3/23/15, 25, 39-40), adding 

that his wife was in the car when the officer approached but had exited to meet the handyman 

before he was arrested. (N.T. 3/23/15, 42). 

Jane Huynh, Appellant's wife, also testified in his defense. She indicated that on the night 

of her husband's arrest, she drove to the area where the incident occurred to meet her husband 

who was planning to meet with a handyman. (N.T. 3/23/15, 61, 64). When Appellant arrived, 

she entered the passenger side back seat of Appellant's car, which had a large coffee pot and 

ovenuling an objection to closing comments made by the prosecutor, and the Court erred by 

denying his Motion for Reconsideration of Sentence. 
3 

2 In his l 925(b) statement Appellant also argues that the evidence was insufficient to support a charge of criminal 

solicitation. Appellant was not convicted of that charge so that claim is a nullity. 

Here, Appellant was convicted of the crime of patronizing prostitutes which is codified, 

evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super. 2006). 

they may not be disturbed. Id. The finder of fact is free to believe some, all, or none of the 

judgment for that of the fact finder, and where the record contains support for the convictions, 

A.2d 226, 231 (Pa. Super. 2007) ( citation omitted). A reviewing court may not substitute its 

sustain its burden by means of wholly circumstantial evidence. Commonwealth v. Duncan, 932 

The Commonwealth need not establish guilt to a mathematical certainty, and it may 

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-1236 (Pa. 2007) (emphasis in original). 

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction... does not require a 

court to 'ask itself whether it believes that the evidence at the trial 

established guilt beyond a reasonable doubt. Instead, it must 

determine simply whether the evidence believed by the fact-finder 

was sufficient to support the verdict. .. [A]ll of the evidence and 

any inferences drawn therefrom must be viewed in the light most 

favorable to the Commonwealth as the verdict winner. 

verdict, the Pennsylvania Supreme Court provides the following standard of review: 

prostitute.2 In reviewing a claim that alleges that the evidence was insufficient to support a 

reasonable doubt that he possessed the intent to hire a prostitute or that he did in fact "hire" a 

sufficiency of the evidence. He argues that the Commonwealth failed not to prove beyond a 

In his 1925 (b) statement, Appellant first raises numerous issues challenging the 

DISCUSSION 

told him to drive away. (N.T. 3/23/15, 64). 

64). Ms. Huynh told her husband that she did not want to be involved in what was occurring and 

parking spot, a woman approached the car and said something to Appellant. (N.T. 3/23/15, 63- 

tools partially obscuring her. (N.T. 3/23/15, 61-62). While her husband was searching for a 
4 

of the police officer who was the sole witness of the prosecution, given her conflicting testimony 

Appellant next argues that this Court erred by "giving improper weight to the testimony 

merit. 

Accordingly, it is suggested that Appellant's sufficiency claimed be deemed lacking in 

Pa CS A §5902(e) because he contracted to purchase oral sex for $20.00. 

conviction. Under the totality of circumstances, this was sufficient to satisfy the elements of 18 

was masquerading as a prostitute, Appellant's conduct satisfies the criteria necessary to sustain a 

this conduct, Appellant manifested his intent to hire the officer for a sex act. Because the officer 

then asked for oral sex. He then offered to pay the officer $20.00 for the sex act. In engaging in 

A §5902(e). Officer Rosenbaum testified that Appellant signaled her to come over to his car and 

the evidence was sufficient to sustain the verdict finding Appellant guilty of violating 18 Pa C S 

Drawing all inferences in favor of the Commonwealth as the law requires, it is clear that 

(i) if the element involves the nature of his conduct or a 

result thereof, it is his conscious object to engage in conduct of 

that nature or to cause such a result; and 

(ii) if the element involves the attendant circumstances, 

he is aware of the existence of such circumstances or he 

believes or hopes that they exist. 

(1) A person acts intentionally with respect to a material 

element of an offense when: 

Pursuant to 18 Pa.C.S.A. § 302(b)(l) 

18 Pa CS A §5902(e). 

Patronizing prostitutes.-- A person commits the offense of 

patronizing prostitutes if that person hires a prostitute or any other 

person to engage in sexual activity with him or her or if that person 

enters or remains in a house of prostitution for the purpose of 

engaging in sexual activity. 

in 18 Pa CS A §5902(e). It states: 
5 

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009). 

Regarding Appellant's weight of the evidence claim we 

note that Appellant did not make a motion raising a weight of the 

evidence claim before the trial court as the Pennsylvania Rules of 

Criminal Procedure require. See Pa.R.Crim.P. 607(A).22 The fact 

that Appellant included an issue challenging the verdict on weight 

of the evidence grounds in his 1925(b) statement and the trial court 

addressed Appellant's weight claim in its Pa.R.A.P 1925(a) opinion 

did not preserve his weight of the evidence claim for appellate 

review in the absence of an earlier motion. Pa.R.Crim.P. 607(A); 

Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1257 (2009) 

(holding that inclusion of an issue in a 1925(b) statement that has 

not been previously preserved does not entitle litigant to appellate 

review of the unpreserved claim); Mack, 850 A.2d at 694 (holding 

weight claim waived by noncompliance with Pa.R.Crim.P. 607, 

even if the trial court addresses it on the merits); Commonwealth v. 

Burkett, 830 A.2d 1034, 1037 (Pa.Super.2003) (same). See also 

Commonwealth v. Little, 879 A.2d 293, 300-301 (Pa.Super.2005), 

appeal denied, 586 Pa. 724, 890 A.2d 1057 (2005); 

Commonwealth v. Washington, 825 A.2d 1264, 1265 

(Pa.Super.2003). Appellant's failure to challenge the weight of the 

evidence before the trial court deprived that court of an opportunity 

to exercise discretion on the question of whether to grant a new 

trial. Because "appellate review of a weight claim is a review of 

the exercise of discretion, not of the underlying question of 

whether the verdict is against the weight of the evidence," 

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 753 

(2000), this Court has nothing to review on appeal. We thus hold 

that Appellant waived his weight of the evidence claim because it 

was not raised before the trial court as required by Pa.R.Crim.P. 

607. 

be presented to the trial court or else it is waived. 

In order to preserve a weight of the evidence claim for appellate review, said claim must 

should be rejected because Appellant failed to state why he believes this to be the case. 

To the extent that Appellant's claim challenges the weight of the evidence, any such claim 

testimony credible, a decision this Court submits is unassailable. 

fact may believe all, part, or none of the testimony. Here, this Court found Officer Rosenbaum's 

about the alleged crime." Appellant's 1925(b) Statement. Issue D. As noted above, the trier of 
6 

3 Even if the claim had been preserved no relief would be due Appellant. Any inconsistency was for this Court to 

resolve and the fact that any inconsistency was resolved in favor of the Commonwealth does not support a weight 

claim. Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995) (holding that mere inconsistencies do not 

support a weight of the evidence claim). 

A trial court's rulings on matters pertaining to prosecutorial 

misconduct in a closing argument are reviewed "for an abuse of 

discretion ... Comments by a prosecutor constitute reversible error 

only when their effect is to prejudice the jury, forming in [the 

jurors'] minds a fixed bias and hostility toward the defendant such 

that they could not weigh the evidence objectively and render a fair 

verdict ... While it is improper for a prosecutor to offer any 

personal opinion as to the guilt of the defendant or the credibility 

of the witnesses, it is entirely proper for prosecutor to summarize 

In Commonwealth v. Thomas, 54 A.3d 332 (Pa. 2012), the Court stated: 

(N.T. 3/23/15, 83). 

[1] [PROSECUTOR]: Your Honor, I don't think 

[2] the officer is mistaken. I think the act of 

[3] this defendant in the story is alarming. 

[ 4] I think the fact that they have 

[5] conflicting stories about how long they know 

[6] this handyman -- supposedly the wife says that 

[7] they known him a long time, this defendant says 

[8] I just met him once before that, or I didn't 

[9] know him very well, and this defendant changes 

[ 1 O] his names -- and changes his name at two 

[ 11] different times. Today he called him Hume, and 

[12] then saying it's Sung Tran. He changes his 

[13] job, saying Johnson and Johnson, and then he 

(14] says -- 

(15] MR. TINARI: Objection. 

is believed that he is referring to the following comments: 

Although Appellant did not identify where in the record the complained of argument appears, it 

mischaracterize his employment and the name of the handyman during his closing address. 

Appellant next complains that this Court erred by permitting the prosecutor to 

weight claim be deemed waived. 3 

In accordance with the holding of Sherwood, it is respectfully suggested that Appellant's 
7 

4 See N.T. 3/23/15, 49-50, 51, 54-55. 

defendant, and the defendant's potential for rehabilitation." 1925(b) Statement, Issue G. The 

Reconsideration of Sentence "given the nature of the offense, the personal characteristics of the 

Finally, Appellant argues that error occurred as a result of the denial of his Motion for 

granted with respect to this claim.4 

inconsistencies in his testimony at both of his trials and therefore, it is suggested that no relief be 

here complained of because Appellant presented plausible explanations for the apparent 

(Pa.Super.2003). This Court submits that it did not give much, if any, credence to the arguments 

97 A.3d 782, 788 (Pa. Super. 2014), citing Commonwealth v. Dent, 837 A.2d 571 

ignore prejudicial statements, and disregard inadmissible evidence." Commonwealth v. Smith, 

was a waiver trial. "[A] trial court, acting as the finder of fact, is presumed to know the law, 

Even if the remarks were improper, it is suggested that no relief is required because this 

refusing to preclude those remarks. 

Thus, the prosecutor's arguments were supported by the record and no error was committed by 

when asked the name of the handyman and about where he was employed. (N.T. 3/23/15, 50-51). 

impeach his credibility by showing that he had given different responses during his first trial 

on evidence of record. During Appellant's cross-examination, the prosecutor attempted to 

Instantly, a review of the record shows that the complained of comments were predicated 

Thomas, 54 A.3d 337-8 (Pa.2012) (internal citations omitted). 

the evidence presented, to offer reasonable deduction and 

interences from the evidence, and to argue that the evidence 

establishes the defendant's guilt ... In addition, the prosecutor must 

be allowed to respond to defense counsel's arguments, and any 

challenged statement must be viewed not in isolation, but in the 

context in which it was offered ... 'The prosecutor must be free to 

present his or her arguments with logical force and vigor,' and 

comments representing mere oratorical flair are not objectionable." 
8 

proper standard of review when considering whether to affirm a trial court's sentencing 

determination is an abuse of discretion. An abuse of discretion is more than a mere error in 

judgment; thus a sentencing court will not have abused its discretion unless the record discloses 

that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) citing Commonwealth v. 

Smith, 673 A.2d 893, 895 (Pa. 1996). In imposing a sentence, the court must consider 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 as well as the 

sentencing guidelines. 42 Pa. C.S.A.§ 9721(b), Walls, 926 A.2d at 963. 

Here, the defendant challenges a discretionary aspect of sentencing. There is no 

automatic right to appeal a discretionary aspect of sentencing, so this appeal must be considered 

as a petition for permission to appeal. Commonwealth v. Tuladzieki, 522 A.2d 17 (Pa. 1987). 

There are four ( 4) pre-requisites to the proper preservation of an issue regarding the discretionary 

aspects of sentencing: (1) the issue must be specifically preserved in a timely motion to modify 

sentence; (2) a timely notice of appeal must be filed; (3) the issue must be set forth in the issues 

to be raised on appeal in the statement of questions presented; and (4) the issue must be included 

within a concise statement of the reasons for allowance of appeal which demonstrates a 

substantial question that the sentence imposed was not appropriate under the sentencing code. 

(Pa. Super. 1997). While it appears Appellant properly preserved the issue, it is suggested that he 

is not entitled to relief. 

As noted above, Appellant claims that this Court failed to consider mitigating 

circumstances. It is well settled that a claim that alleges that the trial court committed an abuse of 

discretion during a sentencing hearing by failing to consider mitigating factors does not raise a 
9 

substantial question. Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006). A 

defendant's mere dissatisfaction with the weight which a sentencing court gave mitigating 

factors does not warrant modification. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 

1997). Given that Appellant claim here rests entirely on a claim that the Court did not consider 

mitigating circumstances relief should be denied for that reason alone. 

Even had Appellant presented a substantial claim no relief would be due. First, the 

sentence at issue in the present case was within the guideline ranges. During the sentencing 

hearing, it was revealed that the Sentencing Guidelines recommended a sentence of RS-to three 

months, plus or minus three months, based on Offense Gravity Score of I and a Prior Record 

Score of Three. (N.T. 3/23/15, 86). When a sentence is within the guideline ranges, it must be 

determined whether the sentence is "clearly unreasonable." 42 Pa. C.S.A. § 9781(c)(2). 

Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa. Super. 2008). The reasonableness inquiry is 

based in part on the factors set forth in 42 Pa. C.S.A. § 978l(d). Under that statute, the reviewing 

court must consider the nature and circumstances of the offense and the history and 

characteristics of the defendant; the opportunity of the sentencing court to observe the defendant, 

including any presentence investigation; the findings upon which the sentence was based; and 

the guidelines promulgated by the commission. Id.; Dodge, supra. In addition, a sentence may be 

unreasonable if the sentencing court fails to consider the factors set forth in 42 Pa. C.S.A. § 

972l(b): i.e., the protection of the public; the gravity of the offense in relation to the impact on 

the victim and the community; and the rehabilitative needs of the defendant. Walls, supra. 

Under these standards, the sentence imposed was not unreasonable or an abuse of 

discretion because all of the factors above were considered when this Court fashioned its 

sentence. Although pre-sentence reports were not prepared, this Court was aware that Appellant 
10 

Daniel D. Mccaffery,· . 

Date: January 21, 2016 

BY THE COURT, 

in this matter against appellant be affirmed. 

Based on the foregoing, it is respectfully suggested that the judgment of sentence entered 

CONCLUSION 

informed of pertinent facts, his discretion should not be disturbed). 

(Pa. Super. 2002) (where a judge who makes a discretionary sentencing decision has been fully 

required factors in fashioning Appellant's sentence. See Commonwealth v. Griffin, 804 A.2d 1 

unreasonable, did not constitute an abuse of discretion, and that the Court considered all of the 

deemed lacking in merit because it is clear that the sentence imposed herein was not 

nature of the crime herein. Given all of the foregoing, it is suggested that the instant claim be 

was also aware that Appellant had not engaged in criminal conduct for some time and of the 

was married, was employed, and that he had a child, facts that were elicited at trial. The Court 
11 

Hugh Burns, Esquire 

Chief-Appeals Unit 

Office of the Philadelphia 

District Attorney 

Three South Penn Square 

Philadelphia, PA 19107 

Phong N. Tran, Esquire 

107 Fairway Tterrace 

Mount Laurel, N.J. 08054 

correct copy of the attached opinion was served upon the following: 

certifies that on the 21st day of January, 2016, by first class mail, postage prepaid, a true and 

I, James Molinari, Esquire, Law clerk to the Honorable Daniel D. McCaffery hereby 

CERTIFICATION OF SERVICE