J-S67029-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EUGENE DUKE FARLEY, III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 979 MDA 2019

Appeal from the Judgment of Sentence Entered May 15, 2019

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

No(s): CP-06-CR-0004464-2012

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 26, 2019

Appellant, Eugene Duke Farley, III, appeals from the May 15, 2019 

Judgment of Sentence of ten months’ to four years’ imprisonment imposed at 

Docket Number 4464-2012 following a violation of probation (“VOP”) hearing. 

On appeal, Appellant challenges the discretionary aspects of his sentence. 

After careful review, we affirm.

The relevant facts and procedural history are as follows. On March 17, 

2014, Appellant pleaded guilty to Delivery of a Controlled Substance 

(cocaine),

1 and the court imposed a sentence of two years’ special probation.2

 

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).

2 That same day, Appellant also pleaded guilty at a separate docket number 

to Possession of a Firearm, 18 Pa.C.S. § 6105(a)(1), for which the court 
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While serving probation, Reading police arrested Appellant for Possession of a 

Controlled Substance.3 A jury convicted Appellant of this offense at Docket 

Number 4633-2018. The court sentenced him to eight to twenty-four months’ 

incarceration. As a result of this new conviction, the court held a Gagnon II 

hearing, at which Appellant admitted that his use of a controlled substance 

and subsequent conviction violated the terms of his probation. The VOP court 

found Appellant in violation, and sentenced him to a term of ten months’ to 

four years’ incarceration, with 224 days’ credit for time served.4 

Appellant filed a Motion for Modification of Sentence in which he 

challenged the discretionary aspects of his sentence. In particular, Appellant 

alleged that the court failed to place sufficient reasons on the record in support 

of its sentence and that the court failed to consider adequately Appellant’s 

mitigating circumstances. Motion, 5/24/19, at ¶ 10, 11. Following a hearing, 

on June 18, 2019, the court denied Appellant’s Motion.

This timely appeal followed. Both Appellant and the trial court have 

complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

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imposed a sentence of 18 to 48 months’ incarceration. The court ordered 

Appellant’s probationary sentence for his PWID conviction to run consecutive 

to his Possession of a Firearm sentence.

3 35 P.S. § 780-113(a)(16).

4 The court ordered this sentence to run concurrently with Appellant’s eight to 

twenty-four month sentence of incarceration for his Possession of a Controlled 

Substance at Docket Number 4633-2018.
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[] Whether the [t]rial [c]ourt erred by imposing a sentence of not 

less than 10 months nor more than 4 years by failing to take into 

consideration Appellant’s mitigat[ing] factors, which included: 

Appellant’s troubled past, attending counselling programs while in 

prison[,] and the available family support of mother.

Appellant’s Brief at 5.

Appellant claims that the VOP court abused its discretion in sentencing 

him because it failed to take into account “numerous mitigating factors,” 

including: (1) Appellant’s substance abuse problem and need for 

rehabilitation; (2) the close relationship he has with, and the support he 

receives from, his mother; and (3) Appellant’s acceptance of responsibility for 

his mistakes. Appellant’s Brief at 14-16. 

Challenges to the discretionary aspects of sentencing are not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a 

discretionary sentencing issue, we must determine: (1) whether appellant has 

filed a timely notice of appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify sentence; (3) whether 

appellant’s brief sufficiently addresses the challenge in a statement included 

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

Appellant has satisfied each of the first three prerequisites. We, thus, 

proceed to address whether Appellant has raised a substantial question for 

our review. 
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Whether a substantial question has been raised regarding discretionary 

sentencing is determined on a case-by-case basis. Commonwealth v. 

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A substantial question exists 

only when the appellant advances a colorable argument that the sentencing 

judge’s actions were either: (1) inconsistent with a specific provision of the 

Sentencing Code; or (2) contrary to the fundamental norms which underlie 

the sentencing process.” Id. (citation and quotation omitted).

Claims that the sentencing court did not adequately consider mitigating 

factors generally do not raise a substantial question. Commonwealth v. 

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). A specific claim that the court 

refused to weigh mitigating factors as an appellant wished, absent more, does 

not raise a substantial question. Moury, 992 A.2d at 175; Commonwealth 

v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have held that a claim 

that a court did not weigh the factors as an appellant wishes does not raise a 

substantial question”).

Appellant’s claim amounts to no more than a bald allegation that the 

court abused its discretion in failing to consider mitigating factors as he 

wished. Pursuant to the above case law, Appellant has failed to raise a 

substantial question. His challenge to the discretionary aspects of his 

sentence, thus, fails. 

Judgment of Sentence affirmed.

President Judge Emeritus Stevens joins the memorandum.

Judge Olson concurs in result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/26/2019