J-S10034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TERRANCE SMITH

Appellant No. 3064 EDA 2015

Appeal from the Judgment of Sentence dated September 22, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008093-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED MAY 18, 2017

Appellant, Terrance Smith, appeals from his judgment of sentence of 

an aggregate of five and one-half to fourteen years’ incarceration, followed 

by eight years’ probation. We affirm.

The underlying facts, as recounted by the trial court, are as follows:

[O]n November 18, 2011, . . . police observed [Appellant] 

hand small objects to another person, Will Pryor, in front of 1673 

Orthodox Street, in the city and county of Philadelphia. As police 

arrived, Will Pryor immediately discarded packets containing 

cocaine, which is a prohibited narcotic controlled substance 

pursuant [to] Schedule II of [] 28 Pa. Code § 25.72(c)(2)(xi).

As the uniformed officers approached, [Appellant] also 

immediately fled and removed a .45 caliber handgun from his 

waistband and threw it over a fence during the pursuit. 

[Appellant] physically fought with the responding officers until 

eventually subdued and placed under arrest. This discarded 

semi-automatic firearm was recovered by the officers and 

determined to be operable, loaded and ready to fire with ten 

rounds in the magazine and one in the chamber. Also, the sum 

of $250.00 was . . . recovered from [Appellant’s] clothing when 
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arrested. [Appellant] possessed no license to possess or carry 

the confiscated firearm. 

Trial Ct. Op., 6/10/16, at 5.

On April 6, 2015, Appellant entered an open guilty plea for the crimes 

of carrying a firearm without a license, possession with intent to deliver a 

controlled substance, and carrying a firearm on public streets in Philadelphia. 

Trial Ct. Op. at 2.1 The sentencing court ordered a presentence investigation 

report (“PSI”) and mental health evaluation of Appellant. Id. at 3.

On September 22, 2105, following a sentencing hearing, the court

sentenced Appellant to three to seven years’ incarceration for carrying a 

firearm without a license, one and one-half to five years’ incarceration 

followed by five years’ probation for possession with intent to deliver a 

controlled substance, and one to two years’ incarceration followed by three 

years’ probation for carrying a firearm on public streets in Philadelphia. Trial 

Ct. Op. at 3. The court ordered that all three sentences be run consecutively, 

resulting in an aggregate sentence of five and one-half to 14 years’ 

incarceration and eight years’ probation. Id. at 4. 

____________________________________________

1 18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. § 

6108, respectively. In exchange for Appellant’s guilty plea, the 

Commonwealth agreed to dismiss Appellant’s three other charges, including 

a charge of possession of a firearm by a prohibited person (18 Pa.C.S. § 

6105(a)(1)), a second-degree felony. Trial Ct. Op. at 2; see also Phila. Cty. 

Criminal Docket, 6/14/16. No agreement was made regarding Appellant’s 

sentence. Trial Ct. Op. at 2.
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Appellant filed (1) a timely post-sentence motion, which was denied, 

(2) a timely notice of appeal, and (3) a timely Pa.R.A.P. 1925(b) statement. 

Trial Ct. Op. at 4. Appellant raises the following issues:

I. Petitioner’s sentence was an abuse of discretion as he was 

sentenced to 5.5-14 years followed by 8 years of reporting 

probation which did not follow the dictates of 42 Pa.C.S. § 

9721(b) that requires the court to at least consider the 

particular circumstances of the offense and the character 

of the defendant.

II. The trial court abused its discretion when it impermissibly 

took into account defendant’s prior arrests, as if they were 

convictions.

Appellant’s Brief at 6.2

A defendant who enters an open guilty plea may appeal the 

discretionary aspects of his sentence. Commonwealth v. Dalberto, 648 

A.2d 16, 20 (Pa. Super. 1994) (citation omitted), appeal denied, 655 A.2d 

983 (Pa.), cert. denied, 516 U.S. 818 (1995). Pursuant to Pa.R.A.P. 

2119(f), Appellant must include with his brief “a concise statement of the 

reasons relied upon for allowance of appeal with respect to the discretionary 

aspects of a sentence.” Appellant has done so. See Appellant’s Brief at 7. 

Before we reach the merits of Appellant’s issues however, we must 

determine whether Appellant’s Rule 2119(f) statement sets forth a question 

that Appellant’s sentence is inappropriate under the sentencing code, and 

whether this question is substantial enough to warrant our discretionary 

____________________________________________

2 Appellant preserved his first issue in his post-sentence motion, and his 

second issue by objection on the record at the sentencing hearing.
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review. Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 

2014), appeal denied, 109 A.3d 678 (Pa. 2015); see also 42 Pa.C.S. § 

9781(b) (providing that this Court has discretion to allow an appeal of the 

discretionary aspects of a sentence only if the appeal presents a substantial 

question as to the sentence’s propriety). 

Here, Appellant’s Rule 2119(f) statement raises several interrelated 

issues. Appellant claims that his aggregate sentence of a minimum of five 

and one-half years’ incarceration was manifestly excessive because the 

sentences he received on the three separate counts were imposed to run 

consecutively. Appellant’s Brief at 7-8. As evidence of excessiveness, 

Appellant asserts that the aggregate sentence was “well over double what 

the guidelines of 30-42 +/- 12 months called for,” and that it was in excess 

of the Commonwealth’s recommended sentence. Id.3Finally, Appellant 

complains that the court did not take into account the sentencing factors 

required under 42 Pa.C.S. § 9721(b), such as “Appellant’s background, 

remorse, acceptance of responsibility, and whether Appellant could be 

rehabilitated,” and that the court improperly considered Appellant’s “prior 

acts, many of which were not convictions.” Id. at 7-9.

“A claim that the sentencing court imposed an unreasonable sentence 

by sentencing outside the guidelines presents a substantial question.” 

____________________________________________

3 The Commonwealth requested an aggregate sentence of five to ten years’ 

incarceration, followed by five years’ probation. N.T. at 9.
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Commonwealth v. Tirado, 870 A.2d 362, 366 (Pa. 2005). Appellant’s 

claim that his sentence is excessive as “well over double” the guidelines 

ranges, therefore appears, at first blush, to present a substantial question, 

warranting our review of whether Appellant’s sentence constituted an abuse 

of discretion. Appellant’s Rule 2119(f) statement, however, does not state 

what the guideline sentence ranges were for each of his three counts, and 

the specific sentences he received for each of those counts. See 

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000)

(requiring that the Rule 2119(f) statement specify where the sentence falls 

in relation to the sentencing guidelines).

Upon further investigation, we discern that each of Appellant’s three 

sentences actually falls within the recommended sentencing guidelines.4 The 

imposition of these sentences as consecutive does not, alone, render the

aggregate sentence outside the guidelines. See 42 Pa.C.S. § 9721(a) 

(permitting a court to impose sentences to run consecutively).

____________________________________________

4

For carrying a firearm without a license, Appellant received a sentence of a 

minimum of 36 months’ incarceration; the standard guidelines range 

spanned a minimum of 30 to 42 months’ incarceration. See N.T., 9/22/15, 

at 6. For possession with intent to deliver, Appellant received a sentence of a 

minimum of 18 months’ incarceration; the standard guidelines range called 

for a minimum of 12 to 18 months’ incarceration. Id. Finally, for carrying a 

firearm on the public streets of Philadelphia, Appellant was sentenced to a 

minimum of 12 months’ incarceration; the standard guidelines range for this 

count ranged from a minimum of six to sixteen months’ incarceration. See

Basic Sentencing Matrix, 204 Pa. Code § 303.16(a); Offense Listing, 204 Pa. 

Code § 303.15 (listing an offense gravity score of 5); N.T. at 6 (Appellant 

has a prior record score of 3).
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When a sentence falls within the guidelines, as does Appellant’s, we 

determine whether a substantial question as to excessiveness exists not by 

examining the merits of whether the sentence is actually excessive, but 

through examination of “whether the appellant has forwarded a plausible 

argument that the sentence . . . is clearly unreasonable.” Commonwealth 

v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d 

161 (Pa. 2014).

Appellant complains that his aggregate sentence is excessive due to 

the imposition of consecutive sentences. “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.” Dodge, 77 A.3d at 1270. To determine whether the 

imposition of consecutive sentences presents a substantial question, then, 

we decide “whether the decision to sentence consecutively raises the 

aggregate sentence to, what appears upon its face to be, an excessive level 

in light of the criminal conduct at issue in the case.” Id. at 1269. 

Here, Appellant was dealing drugs, carrying a loaded and unlicensed 

firearm, and fought with his arresting officers until he was subdued. In light 

of these facts, we cannot say that, on its face, the sentencing court’s 

decision to run Appellant’s one year and one and one-half year minimum 

sentences consecutively to each other and to his three year minimum 
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sentence (resulting in an aggregate five and one-half years’ minimum 

incarceration, rather than three years’ minimum incarceration), is clearly 

excessive or unreasonable. 

However, Appellant also claims that the court did not consider the 

sentencing factors listed in 42 Pa.C.S. § 9721(b), including “Appellant’s 

background, remorse, acceptance of responsibility, and whether Appellant 

could be rehabilitated.” As we have previously noted, “a challenge to the 

imposition of consecutive sentences as unduly excessive, together with a 

claim that the trial court failed to consider the defendant’s rehabilitative 

needs upon fashioning its sentence, presents a substantial question.” 

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

marks, brackets, and citation omitted), appeal denied, 145 A.3d 161 (Pa. 

2016).5 Moreover, Appellant contends that the court improperly based its 

sentence on Appellant’s prior arrests. Reliance on impermissible sentencing 

____________________________________________

5 We acknowledge that where a sentence falls within the guidelines, an 

argument that the sentencing court failed to consider or did not accord 

appropriate weight to various sentencing factors does not necessarily raise a 

substantial question. In Dodge, 77 A.3d at 1272 n.8, we observed: 

[T]his Court’s determination of whether an appellant has 

presented a substantial question in various cases has been less 

than a model of clarity and consistency, even in matters not 

involving excessive sentence claims. . . . Careful litigants should 

note that arguments that the sentencing court failed to consider 

the factors proffered in 42 Pa.C.S. § 9721 does present a 

substantial question whereas a statement that the court failed to 

consider facts of record, though necessarily encompassing the 

factors of § 9721, has been rejected.
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factors can raise a substantial question. Dodge, 77 A.3d at 1273 (citing 

Commonwealth v. Roden, 730 A.2d 995 (Pa. Super. 1999)). Appellant, 

therefore, has raised a substantial question to the extent that he challenges 

whether the court properly considered the sentencing factors or 

impermissibly considered other factors when determining whether to run his 

sentences consecutively. We turn to the merits of these issues.

Upon appeal from an imposed sentence, we consider the following:

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.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 

2006). Additionally, our review of the discretionary aspects of a 

sentence is confined by the statutory mandates of 42 Pa.C.S. §§ 

9781(c) and (d). Subsection 9781(c) provides:

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
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(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). 

In reviewing the record, we consider:

(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).

Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super.), appeal 

denied, 105 A.3d 736 (Pa. 2014). Furthermore, 

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.

42 Pa.C.S. § 9721(b). The court shall not impose a sentence of total 

confinement without “regard to the nature and circumstances of the crime 

and the history, character, and condition of the defendant.” 42 Pa.C.S. § 

9725.
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Here, Appellant claims that the court abused its discretion when it 

failed to take into account the family support he had and his lack of felony 

convictions. Appellant’s Brief at 11. However, the record reflects that the 

court took into consideration Appellant’s family background and the 

sentencing guidelines, which are based on Appellant’s prior record score. 

See N.T. at 19-20. Appellant also complains that the court did not consider 

his exercise of allocution to be mitigating. Appellant’s Brief at 14.6 However, 

a sentencing court is not required to address each mitigating factor on the 

record, but only to generally state its reasons for the sentence imposed. 

Commonwealth v. Samuel, 102 A.3d 1001, 1007–08 (Pa. Super. 2014),

appeal denied, 134 A.3d 56 (Pa. 2016). 

Moreover, the court had the benefit of a PSI. We therefore presume 

that the court was fully apprised of all mitigating information contained 

therein. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) 

(“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. . . . [S]entencers are under no compulsion to 

employ checklists or any extended or systematic definitions of their 

punishment procedure. Having been fully informed by the pre-sentence 

____________________________________________

6 During his brief allocution, Appellant expressed remorse, his ability to 

reform, and his desire to return to caring for his daughter. N.T. at 18-19.
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report, the sentencing court's discretion should not be disturbed”); accord 

Commonwealth v. Johnson, 125 A.3d 822, 827 (Pa. Super. 2015). 

Appellant’s claims related to this issue are therefore belied by the record.

Finally, Appellant claims that the sentencing court improperly 

considered his prior arrests. Appellant’s Brief at 15. He complains that the 

court “reiterated this information . . . before it even mentioned his 

convictions” and asserts that the court based his sentence on “red flags,” “a 

fairly large number of arrests,” “guns and drugs,” and “combative behavior.” 

Id. Appellant cites Commonwealth v. Johnson, 481 A.2d 1212 (Pa. Super. 

1984), for the proposition that “[t]hough it is proper for a court to consider 

previous arrests, [it] must recognize that the defendant has not been 

convicted of the charges, which is different from [the sentencing judge’s] 

sentencing rationale.” Appellant’s Brief at 15.

As we noted in Johnson, a sentencing court is permitted to consider a 

defendant’s prior arrests that did not result in convictions:

A sentencing court must examine the circumstances of the crime 

and the individual background of the defendant since the 

sentence imposed must be the minimum punishment consistent 

with the protection of the public, the gravity of the offense and 

the rehabilitative needs of the defendant. The court may also 

consider a defendant's prior arrests which did not result in 

convictions, as long as the court recognizes that the defendant 

had not been convicted of the charges. Broad discretion is 

reposed in the sentencing judge to receive relevant information. 

Generally, the imposition of a sentence is within the discretion of 

the trial court and is left undisturbed on appeal because the trial 

court is in a better position to weigh factors involved in its 

determination; however, this discretion must be exercised within 
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certain procedural limits, including consideration of sufficient and 

accurate information. 

Johnson, 481 A.2d at 1214 (citations omitted).

Here, as explained by the sentencing court:

In the instant case, this Court, [ ] cautioned the prosecutor and 

directed her to cease speaking about the Defendant’s arrests and 

limit her sentencing arguments to adjudicated matters. Hence, 

on the record, this trial court voiced unequivocal comprehension 

of the limited basis for which the arrests that did not result in 

adjudications or convictions may be measured. These arrests 

were not to be unduly weighed or considered as showing 

criminal conduct . . . . This Court exercised sound judgment 

when reviewing the Defendant’s prior arrests along with all of 

the other documented relevant sentencing factors. The 

sentences as imposed were reasonable after appropriately 

examining the need for public protection, the gravity of the 

crimes at issue, and the Defendant’s rehabilitative needs 

consistently with the requirements of 42 Pa.[C.S.] § 9721.

Trial Ct. Op. at 11 (citation to the record omitted). The record supports that 

the sentencing court sustained Appellant’s objection to the Commonwealth’s

recounting of Appellant’s prior arrests. See N.T. at 14-15. The court 

therefore complied with Johnson, by recognizing on the record that 

Appellant’s prior arrests did not result in convictions.

Moreover, it does not appear from the record that the sentencing court 

gave undue weight to Appellant’s prior arrests. Before announcing sentence, 

and amidst recounting other considerations of Appellant’s character, history, 

and mitigating factors, the sentencing court stated:

I have taken into consideration the red flags, as they say, that I 

see within your background that point to someone who is 
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potentially dangerous to law enforcement as well as to folks 

within the Community.

Your combative behavior keeps surfacing in one form or another. 

That is most troublesome to the Court because, at the end of the 

day, I have the safety of the community to think about.

* * *

But I keep seeing drugs and guns and combative behavior, and 

that is very troublesome with respect to you. This is not your 

first time up at bat, obviously.

With respect to your background, a considerably fairly large 

number of arrests, some convictions, and that progressed 

through time. It started as a juvenile.

N.T. at 19-20. Rather than a “reiteration” of Appellant’s prior arrests, as 

asserted by Appellant, the sentencing court was responding to Appellant’s 

convictions. As recounted during sentencing by the Commonwealth, 

Appellant’s convictions include:

The defendant was convicted twice for simple assault as a 

juvenile. Those are not part of his prior record score but can be 

considered by the Court.

The defendant was convicted of simple assault, resisting arrest, 

for struggling with two police officers and actively resisting back 

in 2006.

The defendant was convicted of possession of an instrument of 

crime and recklessly endangering another person for discharging 

a loaded weapon in a residential housing area.

The defendant pleaded guilty in this case to carrying a loaded 

weapon once again on the streets while he was conducting drug 

sales.

N.T. at 15. Although the instant case is Appellant’s first conviction for a drug 

charge, the sentencing court did not err by stating that Appellant’s history 
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included “drugs and guns and combative behavior.” We therefore find no 

reason in the record to conclude that Appellant’s sentence was a result of an 

abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2017