J-S63007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

WARREN FITTS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 136 EDA 2018

Appeal from the Judgment of Sentence August 28, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015121-2012

BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 13, 2020

Appellant, Warren Fitts, appeals from the judgment of sentence entered 

in the Philadelphia County Court of Common Pleas, following his bench trial 

convictions for rape of an unconscious victim, sexual assault, indecent 

exposure, indecent assault of an unconscious person, and simple assault.1 We 

affirm.

The relevant facts and procedural history of this case are as follows. At 

approximately 2:00 a.m. on September 26, 2012, Witness was walking his 

dog near his apartment building when he noticed Appellant having sex with

Victim on the street. Victim appeared to be unconscious. Witness alerted his

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3121(a)(3), 3124.1, 3127(a), 3126(a)(4), and 2701(a), 

respectively. 
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apartment security guard, who went outside to confront Appellant. After the 

guard ordered Appellant multiple times to stop, Appellant stood up, pulled up 

his pants, and started to walk away. The security guard yelled for a hotel 

concierge to call the police. The guard then pursued Appellant and restrained

him until police arrived. 

On April 21, 2017, the court convicted Appellant of the offenses. The 

court deferred sentencing for the completion of a presentence investigation 

(“PSI”) report. After reviewing the PSI, the court sentenced Appellant on 

August 28, 2017, to an aggregate eight (8) to twenty (20) years’ 

imprisonment. On August 30, 2017, Appellant filed a post-sentence motion, 

which was denied by operation of law on December 28, 2017. Appellant timely 

filed a notice of appeal on January 4, 2018. The court did not order Appellant 

to file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), and none was filed. 

Appellant raises the following issue for our review:

DID NOT THE [TRIAL] COURT ERR AND ABUSE ITS 

DISCRETION BY SENTENCING [APPELLANT] TO AN 

UNREASONABLE SENTENCE, WITHOUT GIVING ADEQUATE 

REASONS, ON THE BASIS OF CONSIDERATIONS,

INCLUDING THE NATURE OF THE OFFENSE, HIS PRIOR 

CRIMINAL HISTORY AND THE DEADLY WEAPON 

ENHANCEMENT, THAT WERE ALREADY FACTORED INTO THE 

SENTENCING GUIDELINES AND DID NOT THE [TRIAL] 

COURT FURTHER ERR BY FAILING TO GIVE PROPER 

CONSIDERATION TO [APPELLANT’S] PERSONAL 

CIRCUMSTANCES AND MITIGATING FACTORS, AND AS A 

RESULT THE SENTENCE IS CONTRARY TO THE 

FUNDAMENTAL NORMS UNDERLYING THE SENTENCING 

PROCESS AND WAS MANIFESTLY UNREASONABLE AND 
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EXCESSIVE?

(Appellant’s Brief at 3). 

Appellant argues the sentencing court failed to consider either his 

rehabilitative needs or certain mitigating factors, such as his background, 

substance abuse, and mental health issues, when crafting his sentence. 

Rather, Appellant contends the court focused almost entirely on elements 

already taken into consideration by the sentencing guidelines, such as the 

nature of the offense, his prior arrests and convictions, and the deadly weapon 

enhancement. Due to the improper “double-counting” of these elements 

without considering the mitigating factors, Appellant maintains the sentencing 

court imposed a manifestly unreasonable and excessive sentence. Appellant 

concludes his sentence should be vacated and his case remanded for 

resentencing. As presented, Appellant’s claims challenge the discretionary 

aspects of his sentence. See Commonwealth v. Anderson, 830 A.2d 1013 

(Pa.Super. 2003) (stating claim that court considered improper factors at 

sentencing refers to discretionary aspects of sentencing); Commonwealth v. 

Lutes, 793 A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is 

manifestly excessive challenges discretionary aspects of sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal 

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining claim that court did 

not consider mitigating factors challenges discretionary aspects of 

sentencing). 
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Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910 

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing 

issue:

We conduct a four-part analysis to determine: (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.A. § 9781(b).

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

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

Objections to the discretionary aspects of a sentence are waived if they are 

not raised at the sentencing hearing or in a timely filed post-sentence motion. 

Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied, 

621 Pa. 682, 76 A.3d 538 (2013). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating that there is a substantial question 

as to the appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 

2119(f). “The requirement that an appellant separately set forth the reasons 

relied upon for allowance of appeal furthers the purpose evident in the 
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Sentencing Code as a whole of limiting any challenges to the trial court’s 

evaluation of the multitude of factors impinging on the sentencing decision to 

exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112 

(Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. 

denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting 

Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en 

banc)) (emphasis in original) (internal quotation marks omitted). 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Anderson, supra at 1018. 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.” Sierra, supra at 913 (quoting 

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), 

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). 

A claim of excessiveness can raise a substantial question as to the 

appropriateness of a sentence under the Sentencing Code, even if the 

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at 

624. Bald allegations of excessiveness, however, do not raise a substantial 

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, 

a substantial question will be found “only where the appellant’s Rule 2119(f) 

statement sufficiently articulates the manner in which the sentence violates 
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either a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process....” 

Id. Nevertheless, “[a]n allegation that a sentencing court ‘failed to consider’ 

or ‘did not adequately consider’ certain factors does not raise a substantial 

question that the sentence was inappropriate.” Cruz-Centeno, supra at 545 

(quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995), 

appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also 

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining 

allegation that sentencing court failed to consider specific mitigating factor 

generally does not raise substantial question; claim that sentencing court 

ignored appellant’s rehabilitative needs failed to raise substantial question). 

Further, where the sentencing court had the benefit of a PSI, the law assumes 

the court was aware of and weighed relevant information regarding mitigating 

factors. Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005). 

Instantly, Appellant failed to raise his claim, concerning the court’s 

improper double-counting of certain sentencing factors, either at the

sentencing hearing or in his post-sentence motion. Consequently, this claim 

is waived. See Griffin, supra. Appellant properly preserved his remaining 

sentencing complaints. Nevertheless, Appellant’s bald allegation of 

excessiveness does not warrant review. See Mouzon, supra. Likewise, 

Appellant’s assertion that the court failed to consider mitigating factors, such 

as his background, substance abuse, and mental health issues, does not pose 
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a substantial question. See Berry, supra; Cruz-Centeno, supra. Here, the 

court had the benefit of a PSI report. Therefore, we can presume the court 

was aware of the relevant information regarding mitigating circumstances. 

See Tirado, supra. Thus, Appellant is not entitled to relief on his 

discretionary aspects of sentencing claims. Accordingly, we affirm the 

judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/20