J-S24028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STANLEY ELAM, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1555 MDA 2017

Appeal from the Judgment of Sentence, August 10, 2017,

in the Court of Common Pleas of Lancaster County,

Criminal Division at No(s): CP-36-CR-0003940-2016, 

 CP-36-CR-0003941-2016, 

 CP-36-CR-0004386-2016.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 28, 2018

Stanley Elam appeals from the judgment of sentence imposed after a 

jury convicted him of with one count of delivery of a controlled substance at

three different dockets.1 After careful review, we affirm.

Elam’s convictions stem from his delivery of heroin to a confidential 

informant on three different occasions at three separate locations from 

January 2016 to February 2016. On May 3, 2017, a jury convicted him on 

these charges. Sentencing was deferred pending the completion of a presentence investigation ordered by the trial court. On August 10, 2017, Elam

was sentenced to consecutive terms of imprisonment of 15 months to 5 years 

on each count, for an aggregate sentence of not less than 45 months nor more 

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1 35 Pa. C.S.A. § 780-113(a)(30)
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than 15 years. On August 22, 2017, Elam filed a post sentence motion to 

modify sentence which the court denied on September 7, 2017. Elam filed his 

notice of appeal on October 6, 2017. 

Elam’s appeal challenges the discretionary aspect of his sentence. 

“There is no absolute right to appeal when challenging the discretionary aspect 

of a sentence.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 

2010). Rather, an appellant must petition for allowance of appeal pursuant 

to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254 (Pa. 

Super. 2004). When an appellant challenges a discretionary aspect of 

sentencing, we must conduct a four-part analysis before we reach the merits 

of the Appellant's claim. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. 

Super. 2011). In this analysis, we must determine: (1) whether the present 

appeal is timely; (2) whether the issue raised on appeal was properly 

preserved; (3) whether Elam filed a statement pursuant to Pa.R.A.P. 2119(f); 

and (4) whether Elam has raised a substantial question that his sentence is 

not appropriate under the Sentencing Code. Id.

Elam filed a timely notice of appeal, and properly preserved his claim in 

a post-sentence motion. Additionally, Elam has complied with Pa.R.A.P. 

2119(f). See Elam's Brief at 13. We must therefore determine whether Elam

has raised a substantial question for our review.

A substantial question will be found where the defendant advances a 

colorable argument that the sentence imposed is either inconsistent with a 

specific provision of the Sentencing Code or is contrary to the fundamental 
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norms underlying the sentencing process. Commonwealth v. Ventura, 975 

A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). A fundamental norm 

in the sentencing process is an individualized sentence for each defendant.

Commonwealth v. Devers, 546 A.2d 12, 13(Pa. 1988). Individualized 

sentencing is authorized by the Sentencing Code which requires the 

sentencing court to consider public safety, the gravity of the offense in relation 

to the impact on the victim and community, and the defendant’s rehabilitative 

needs. Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) 

(citing Pa. C.S.A. § 9721). Here, within his 2119(f) statement Elam asserts:

Mr. Elam contends that the trial court’s aggregate 

sentence of forty-five (45) [months] to fifteen (15) years of 

incarceration constituted a manifest abuse of discretion 

because the court impermissibly relied on the seriousness 

of the offense and the ongoing heroin crisis in the county in 

imposing consecutive sentences.

Elam’s Brief at 13.

Essentially, Elam argues that in sentencing him, the trial court failed to 

fashion an individualized sentence, and considered improper factors.

Accordingly, Elam’s claim raises a substantial question. See Commonwealth 

v. King, __A.3d__ (Pa. Super. 2018) (finding that appellant’s assertion that 

the sentencing court considered improper factors by admitting a potentially 

erroneous victim impact statement raised a substantial question). 

Our standard of review when analyzing the discretionary aspects of 

sentencing is well established:
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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. Booze, 953 A.2d 1263, 1278-79 (Pa. Super. 2008).

Elam contends that the sentencing court “failed to comply with statutory 

sentencing norms requiring individualized sentence and [that imposing 

consecutive sentences] was a manifest abuse of discretion.” Elam’s Brief at 

12. He further argues that the court impermissibly relied on the serious nature 

of the crime and the present heroin crisis while ignoring Elam’s unique 

characteristics, thereby running afoul of the basic premises of Pennsylvania’s 

individualized sentencing. Id. 13-14. 

In determining whether the trial court made the proper considerations 

during sentencing, we must review the sentencing judge’s comments to 

ensure that he afforded “individualized consideration to the character of the 

defendant.” Commonwealth v. Ritchey, 779 A.2d 1183, 1187 (Pa. Super. 

2001). Before issuing Elam’s sentence, the trial judge commented as follows:

I've gone over the presentence report in detail. I note by 

way of summary you're 57 years of age. You're single. You 

went through the 11th grade in South Philadelphia High 

School. 

You report having one son, but you provided no details 

to the Probation Department. 
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These involve three - these offenses involve three heroin 

deliveries on January 19th, 21st and February 16th all in 

2016. 

You have no reported juvenile record. 

You have an adult record for several offenses of receiving 

stolen property, conspiracy, criminal intent, is a 

misdemeanor in the third degree; violation of the Controlled 

Substance Act is a felony, and then there is the subsequent 

DUI and drug paraphernalia charge. 

You were born in Philadelphia. You have six brothers and 

two sisters. Four of your brothers and one sister are now 

deceased. 

As I noted, you left South Philadelphia High School due 

to having to repeat 11th grade, so you went to South 

Carolina and you worked on a farm for a year before you 

came back to Philadelphia. 

Back in Philadelphia you had employment as a carpenter 

and as a truck driver. You then came to Lancaster in about 

2000.

You were living with a girlfriend prior to your 

incarceration in Lancaster County Prison on these charges. 

You did not obtain your GED after leaving high school, 

nor is there any vocational or further education training. 

(At this point the Defendant interrupts to note that he has 

sprinkler training) 

You report being in good overall general heath. You 

report some alcohol and crack cocaine use at 17, as well as 

some marijuana use, and describe yourself as a social 

drinker. 

You have had recent employment as a truck driver and 

as a forklift operator, and as Ms. Low indicated this 

afternoon, you also had employment installing sprinklers.

 You have a fines and costs balance of about $725. It's 

a little less than that, but that's approximately what it is.

 I've also gone over the charging documents that are 

attached to the presentence report. And we have revised 
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the sentencing guidelines to accurately reflect your prior 

record score. 

I've also reviewed the letter that you submitted, and in 

addition I did sit through the jury trial. 

In addition to the presentence report and the 

attachments, I have considered the provisions of the 

sentencing code and the sentencing guidelines. 

I've considered the circumstances of these offenses, in 

that these are three deliveries in a relatively short period of 

time. 

I've considered the authorized penalties for these 

offenses. I've considered the need to protect the 

community. 

As both your attorney and the prosecuting officer 

indicated, and the district attorney referenced, heroin abuse 

is a crisis at this point, not only in this country, but in this 

county. 

I've considered your rehabilitative needs. I have 

considered what Ms. Low said on your behalf, the positions 

expressed by the Commonwealth, and I've considered what 

you have said. 

It's obvious that you are an intelligent individual. It's 

obvious that you have been able to maintain periods where 

you've had productive employment. 

It's equally obvious that you have a longstanding criminal 

history. 

You have been involved in a number of offense, including 

one that resulted in incarceration in the state correction 

institution. 

Anything you say about it being entrapment or not 

entrapment, that ship has sailed at this point. As I told you, 

that's the final conviction. 

There has to be some type of deterrence to make clear 

to people that this type of activity is simply not something 

that's worthwhile to engage in. 
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And for that reason I concur fully with the Commonwealth's 

request that these sentences should be consecutive. 

This is not a one time situation. In addition, it is clear 

looking over your work history that you do not sell to 

support your habit out of desperation, nor is there any 

indication what you've reported to the Probation 

Department that you have any type of active addiction that 

you would be at least wiling to disclose.

N.T. 8/10/17 at 11-15.

Elam takes issue with the following two statements made by the trial 

court:

As both your attorney and the prosecuting officer indicated, 

and the district attorney referenced, heroin abuse is a crisis 

at this point, not only in this country, but in this county. Id. 

at 17. 

There has to be some type of deterrence to make clear to 

people that this type of activity is simply not something 

that’s worthwhile to engage in. And for that reason I concur 

fully with the Commonwealth’s request these sentences 

should be consecutive. Id.

Elam claims that these statements demonstrate that the judge imposed

consecutive sentences not based on his personal circumstances, but rather on 

“the seriousness of the offense as it relates to the purported heroin and opioid 

crisis . . .” Id. at 16. However, Elam ignores all of the other reasons the court 

articulated for imposing consecutive sentences. 

Here, the sentencing court set forth multiple reasons for imposing 

consecutive sentences. The court noted that Elam was convicted of three 

separate heroin deliveries; he had a prior record beginning in 1989 which 

included drug offenses; he served time in state prison; he demonstrated 
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failure to rehabilitate. Further, the record indicated that Elam was involved in 

drug dealings of a larger capacity.

Elam relies on this Court’s decision in Commonwealth v. Mola, 838 

A.2d 791 (Pa. Super. 2003), where we found the trial court abused its 

discretion when it imposed a statutory maximum sentence as a means of 

general deterrence to prevent future drug dealing. Elam’s Brief at 18. The 

present case, however, is easily distinguishable from Mola. First, unlike in 

Mola, the trial court did not impose the statutory maximum sentence, but 

instead, set Elam’s sentence at the lowest end of the standard range of the 

sentencing guidelines. Elam faced a potential sentence of 90 years’

incarceration under the maximum legal penalty. He had a prior record score 

of 4 during his current sentencing, and he had a prior felony drug offense in 

2012. Despite these facts, the trial court decided to set the individual 

sentences at the lowest end of the standard range of the sentencing 

guidelines.

More importantly, in Mola, the sentencing court announced a blanket 

policy, whereby it would impose a maximum sentence on all drug delivery 

cases to discourage illegal drug trafficking, which this Court found to be a 

manifest abuse of discretion. Id. at 794. In Elam’s case, there is no such 

indication that the trial court was issuing a predetermined sentence on all drug 

related crimes. Instead, the court demonstrated that it considered multiple 

factors that were personal to Elam as well as deterrence considerations.
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Elam also relies on our decision in Commonwealth v. Luketic, 162 

A.3d 1149 (Pa. Super. 2017) to support his argument. In that case, this Court 

vacated the judgment of sentence, finding that the sentencing court failed to 

consider individualized factors regarding Luketic. Id. at 1149. In Luketic,

the sentencing court referred to the heroin epidemic as the “modern day 

plague.” Elam’s Brief at 19. However, the lynchpin in Luketic, was not the 

court’s reference to the community’s drug problem, but rather its predetermination of Luketic’s sentence; the court specifically declared that it 

would send Luketic to jail before the sentencing hearing even began and

before it received any individualized information about Luketic from the 

testimony at the sentencing hearing.

2

 Id. at 163.

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2 Luketic’s co-defendant, Buckner, was sentenced immediately before Luketic. 

Luketic was present at Buckner’s hearing. The judge, referring to Luketic, told 

Buckner during his hearing: “He is going to jail, too. He is not walking out of 

here either.” Luketic’s counsel expressed that the court favored sending him 

to jail, to which the court responded: “I am going to send Luketic to jail. Let’s 

not have any equivocation. He is going to jail, they are both opposite sides 

of the same coin. That’s why he is going to jail, because he creates the guy 

that is with him.” Without hearing evidence pertaining to Luketic, the court 

undoubtedly decided his jail sentence.

Despite probation being the standard range sentence, the court made no 

indication that it would even consider another sentence after hearing evidence 

pertaining to Luketic. Although the court listened to Luketic’s mitigating 

factors, it did not properly take them into account. 

The court’s 1925(a) opinion clearly showed that it “afforded [Luketic] an 

opportunity to argue not so that it could use [Luketic’s] information to craft 

an appropriate individualized sentence, but at most, to see if [Luketic] could 

rebut the court’s ‘preconceived notion’ of the sentence the court already had 

decided to impose. In these circumstances, the sentence was invalid.” 

Luketic, 162 A.3d at 1163-4.
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No such predetermination of sentence occurred Elam’s case. Moreover, 

the sentencing court’s mention of the opioid crisis was legally proper. When 

fashioning a sentence, the court must follow principles that are consistent with 

public protection and the impact the crime has on the community. 42 

Pa.C.S.A. § 9721(b). Additionally, our Supreme Court has held that it is 

appropriate for sentencing courts to consider the effects on the community 

from illegal drug distribution and that the courts are afforded flexibility in 

evaluating the real world effects of the offense when crafting the sentence. 

Commonwealth v. Ali, 149 A.3d 29, 38 (Pa. 2016).

In addition to accounting for community impact, the court must consider 

individualized aspects as well, to ensure a “measured approach” during 

sentencing. Id. at 39. There is a presumption that when a presentence report 

exists, the sentencing court was aware of its contents and weighed those 

considerations, which are relevant to the defendant’s character appropriately. 

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545-46 (Pa. Super. 1997). 

Here, the trial court postponed sentencing after Elam’s conviction in order to 

procure a pre-sentence report, and noted that it considered the report during

sentencing. 

Our careful review of the record convinces us that the trial court did not 

abuse its discretion in fashioning Elam’s sentence. The court properly 

considered public safety, community impact, and Elam’s individual 

characteristics. Most notably, the court made a thorough statement before 

imposing Elam’s sentence which included an extensive account of Elam’s 
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personal background, such as his age, family history, education, lack of a 

juvenile record, work history, productive employment history, vocational 

training, limited drug/alcohol use, overall good health, and intelligence. It is 

evident to us that the sentencing court engaged in a meaningful weighing of 

all the sentencing factors, and that Elam is merely displeased with the weight 

the court gave the mitigating factors.

For the foregoing reasons, we affirm Elam’s judgment of sentence. 

Judgement of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/2018