J-S35039-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK LEONARD MORRO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 444 MDA 2021

Appeal from the Judgment of Sentence Entered February 24, 2021

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

No(s): CP-22-CR-0005314-2018

BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: DECEMBER 10, 2021

Mark Leonard Morro (Morro) appeals the judgment of sentence entered 

by the Court of Common Pleas of Dauphin County (trial court). In 2021, Morro 

entered an open guilty plea as to one count of persons not to possess a firearm 

(felony-one).

1 The trial court sentenced him to a prison term of 9 to 20 years

as to that count. Although the trial court imposed a below-guidelines sentence 

without providing any reasons for departure, Morro argues that his sentence 

should be overturned on the ground that it is manifestly excessive. We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 Morro also entered a guilty plea as to a summary traffic offense that is not 

at issue in this appeal.
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I.

In 2018, Morro was pulled over by police for riding his motorcycle over 

the speed limit. During the stop, Morro initially misidentified himself before 

admitting his identity and the fact that he was carrying a loaded pistol on his 

person. Police discovered that Morro had been prohibited from carrying such 

firearms due to prior convictions for violent crimes. Further, Morro was found 

to be in possession of controlled substances and drug paraphernalia. It was 

suspected that Morro was under the influence of drugs or alcohol at the time 

of the stop.

Morro was charged with (1) possession of firearm prohibited, seconddegree felony; (2) carrying a firearm without a license; (3) manufacture, 

delivery, or possession with intent to manufacture or deliver; (4) intentional 

possession of a controlled substance by a person not registered; (5) 

use/possession of drug paraphernalia; (6) DUI: controlled substanceimpaired ability, 1st offense; (7) false identification to law enforcement 

officers; (8) driving while operating privilege suspended or revoked; and (9) 

exceeding 55 mph speed limit by over 10 mph.

The case was pending for almost three years when on February 18, 

2021, the Commonwealth moved to amend the charging document. A few 

days later, Morro’s counsel petitioned to withdraw from the case. The trial 

court granted the Commonwealth’s motion to amend the charges and 

pursuant to this amendment, the first count (possession of firearm by 
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prohibited person, second-degree) was increased to a felony of the first

degree (18 Pa.C.S. § 6105(a)(1)), and all other counts except for the 

summary speeding offense were withdrawn.

2 Counsel’s motion to withdraw 

was denied.

On the eve of the scheduled jury trial, Morro informed the trial court 

that he intended to enter a guilty plea on the two remaining counts. At the 

plea and sentencing hearing held on February 24, 2021, Morro stated that he 

understood that he would be entering a plea of guilty as to the weapon 

possession count, graded as a first-degree felony, though he disagreed with 

the reclassification. He ultimately entered a guilty plea on the record and 

completed a written guilty plea colloquy form. See Plea and Sentencing

Transcript, 2/24/2021.

Morro was sentenced as outlined above. When imposing sentencing, 

the trial court acknowledged that there were no aggravating circumstances. 

See id. at p. 12. However, the trial court noted to Morro that he had “the 

highest prior record score you could have,” id., and that the “fact situation is 

not mitigated” so as to justify a downward departure sentence. Id. at p. 32.

Relatedly, the trial court discussed the extent of its discretion under the 

applicable sentencing guidelines. The trial court explained that “the standard 

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2 Defense counsel demanded that the summary offense remain so that it would 

provide context in the record for Morro’s suppression motion, which is not at 

issue in this appeal. See Motion Hearing Transcript, 2/23/2012, at pp. 7-8.
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[REVOC] range is . . . 10 to 20 [years].” Id. at p. 31. However, to avoid 

having to give “a rational reason to deviate” from that standard range, the 

trial court consulted the guidelines for “[RFEL] as opposed to [REVOC], and 

looking at the flexibility that will be there.” Id. at p. 32.3 Morro then received 

a prison term of 9 to 20 years on the weapon possession count, with no further 

penalty as to the summary traffic offense. Taking in mind Morro’s past 

struggles with substance abuse, the trial court emphasized that having a 

sentence on only one count would make it easier for him to receive priority

for drug treatment programs during his incarceration.

On March 4, 2021, Morro filed a post-sentence motion raising two main 

grounds. He asserted that the trial court abused its discretion by failing to 

order a presentence investigation report or stating the reasons for dispensing 

with a presentence investigation. He also contended that the trial court had 

misapplied the sentencing guidelines, resulting in an excessive sentence under 

the circumstances.

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3 “Repeat Violent Offender Category [REVOC]” is the Prior Record Score 

category set forth at 204 Pa.Code §303.4(a)(1). “Repeat Felony 1 and Felony 

2 Offender Category [RFEL]” is the Prior Record Score category set forth at 

204 Pa.Code §303.4(a)(2). Of the two categories, REVOC carries the higher 

offense gravity score, which is reflected by an elevated sentencing guidelines 

range. Morro’s conviction for possession of a weapon by a person prohibited, 

felony-one, has an offense gravity score of 10. In combination with that score, 

Morro’s prior convictions were severe enough to qualify him for sentencing 

under the REVOC guidelines, which recommended a range of 10 to 20 years.
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The trial court held a hearing on the post-sentence motion on March 26, 

2021. Defense counsel argued that at sentencing, the trial court was

improperly “utilizing the RFEL guidelines.” Hearing Transcript, 3/26/2021, at 

p. 4. The trial court disagreed with this characterization and stated that RFEL 

was used only “as a fiction in order to adjust what would otherwise be for all 

intents and purposes a mandatory 10 to 20” under the REVOC guidelines. Id. 

Additionally, the trial court asked for a proffer as to what material information 

a presentence report would have contained; when no such information was 

proffered, the trial court explained that a presentence report was never 

compiled because Morro’s plea came on the eve of his trial, after the case had 

been pending for years, and a report had never been requested. Id. at pp. 

6-10, 11-12. At the conclusion of the hearing, the trial court denied Morro’s

post-sentence motion.

Morro appealed, arguing that his sentence is excessive regardless of 

whether the RFEL or REVOC was applicable. See Appellant’s Brief, at 18-22. 

The trial court submitted a 1925(a) opinion, reasoning that Morro waived his 

excessive sentencing claim because he did not object on that ground at 

sentencing or in his post-sentence motion. Moreover, the trial court found

that no relief would be due even if Morro had successfully raised the present 

appellate issues because they do not raise a substantial question. As to 

whether the correct sentencing guidelines were applied, the trial court 

explained that even if it erred, the error could not have caused Morro any 
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prejudice because he ultimately received a more lenient sentence than he was 

legally entitled to. See Trial Court Opinion, 5/24/2021, at 7-9.

II.

Sentencing is a matter vested within the discretion of the trial court. 

See Commonwealth v. Antidormi, 84 A.3d 736,749 (Pa. Super. 2014). The 

merits of a sentencing claim on appeal may only be considered if the trial court 

abused its discretion and if the claim raises a substantial question. See id. at 

759. A substantial question is raised when an appellant “advances a colorable 

argument that the sentencing judge’s action 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. Moury, 992 A.2d 162, 171–72 (Pa. Super. 2010).

An appellant seeking to raise a substantial question must satisfy a fourpart test:

(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).

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

citations omitted).

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 
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828 (Pa. Super. 2007). A bare 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). 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. See Evans, 901 A.2d at 533-34.

“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). “[T]he court 

should refer to the defendant’s prior criminal record, his age, personal 

characteristics and his potential for rehabilitation.” Id. Further, where a 

sentence is within the standard range of the guidelines, it may only be vacated 

if “the case involves circumstances where the application of the guidelines 

would be clearly unreasonable.” 42 Pa.C.S. § 9781(c).

Here, Morro contends that the trial court imposed an excessive 

sentence, failed to consider mitigating factors and applied the incorrect 

statutory sentencing guidelines. He has filed a timely notice of appeal, and 

his appellate brief includes a statement that conforms to Pa.R.A.P. 2119. 

Moreover, Morro has adequately preserved a claim that the trial court 

incorrectly applied the statutory guidelines ranges when imposing sentence, 

and this issue presents a substantial question that may be considered on 

appeal. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
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2015) (en banc) (“This Court has . . . held that an excessive sentence claim—

in conjunction with an assertion that the [trial] court failed to consider 

mitigating factors—raises a substantial question.”).

Proceeding to the merits of Morro’s claims, we find that no relief is due. 

The record shows that the trial court did, in fact, consider all required 

mitigating factors when imposing the sentence, including “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 on the rehabilitative needs of the 

defendant.” 42 Pa.C.S. § 9721(b). The trial court specifically emphasized 

Morro’s admitted need for substance abuse treatment when determining the 

length of incarceration, as well as Morro’s overall personal history and 

perceived recalcitrance in his dealings with the court.

Although the trial court referred both to REVOC and RFEL when imposing 

sentence, REVOC was the applicable prior record score category, and Morro 

ultimately received a term that would have been under the REVOC guidelines 

range.4 If we granted a resentencing as Morro requests, he would run the risk 

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4

It is undisputed that Morro’s prior convictions qualified him for sentencing 

under REVOC guidelines ranges. His current conviction for possession of a 

firearm by a person not to possess, graded as a first-degree felony under 18 

Pa.C.S. § 6105(a)(1), carried an offense gravity score of 10. See 204 Pa.Code 

§ 303.15. Morro had a prior record score of 11 based on his previous felony 

convictions. See id. at § 303.5. This criminal history qualified Morro for 

sentencing under REVOC, and the guidelines range in that framework was 10 

to 20 years; Morro’s sentence of 9 to 20 years fell below that range. See 42 

Pa.C.S. § 9781(c).
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of having his minimum sentence increased from 9 years to 10 years because

the record contains no facts which would have justified a downward departure 

sentence under REVOC. Moreover, the Commonwealth has not asked us to 

correct the trial court’s improper downward departure, and the sentence was 

not rendered illegal by that error such that we must remedy it sua sponte.

5

 

See Commonwealth v. Krum, 533 A.2d 134, 134 (Pa. Super. 1987) (“If a

sentencing court considers improper factors in imposing sentence upon a 

defendant, the court thereby abuses its discretion, but the sentence imposed 

is not rendered illegal. Otherwise, every erroneous consideration by a

sentencing court will render the sentence illegal in a manner which cannot be

waived[.] This is not the law.”); see also Pa.R.Crim.P. 721 (setting forth 

procedure for Commonwealth sentencing appeals and challenges to

sentence).

Accordingly, because Morro’s sentence was not manifestly excessive or 

clearly unreasonable, it must be upheld.

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5 A first-degree felony is punishable by up to 20 years. See 18 Pa.C.S. 

§ 1103(1). Morro’s sentence of 9 to 20 years was, therefore, legal, and this 

Court has no authority to correct the trial court’s abuse of discretion in 

misapplying the statutory sentencing guidelines. See generally 

Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) 

(explaining that a sentence is illegal and reviewable sua sponte if imposed by 

the trial court without statutory authorization). An improper departure from 

the statutory guidelines is an abuse of discretion that does not necessarily 

render a sentence illegal. See e.g., Commonwealth v. Walls, 926 A.2d 

957, 962 (Pa. 2007) (explaining that sentencing guidelines are one component 

factored into trial court’s sentencing authority, which is reviewed under an 

abuse of discretion standard); Krum, 533 A.2d at 134 (same).
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Judgment of sentence affirmed.

Judge Kunselman joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/10/2021