J-S19026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ISMAEL COLON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2131 EDA 2021

Appeal from the Judgment of Sentence Entered August 4, 2021

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

No(s): CP-51-CR-0007611-2018

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

MEMORANDUM BY OLSON, J.: FILED JULY 25, 2022

Appellant, Ismael Colon, appeals from his judgment of sentence, 

entered on August 4, 2021. Appellant’s sole issue on appeal pertains to the 

discretionary aspects of his sentence, a claim which requires an appellant to 

invoke this Court’s jurisdiction. See Commonwealth v. Luketic, 162 A.3d 

1149, 1159-1160 (Pa. Super. 2017) (“Only if the appeal satisfies [a four-part 

test] may we proceed to decide the substantive merits of [an a]ppellant’s 

claim”). After careful consideration, we are constrained to quash Appellant’s 

appeal without reaching the merits because he failed to raise a substantial 

question necessary to invoke our jurisdiction.

The facts of Appellant’s underlying convictions are not pertinent to his 

present appeal. We need only note that, on November 12, 2020, after a 

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* Former Justice specially assigned to the Superior Court.
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two-day bench trial, the trial court found Appellant guilty of criminal attempt –

murder, aggravated assault, possession of firearm prohibited, firearms not to 

be carried without license, carrying firearms in public in Philadelphia, 

possession of instrument of crime with intent, terroristic threats with intent to 

terrorize another, simple assault, and recklessly endangering another person, 

possession of controlled substance, and manufacture, delivery, or possession 

with intent to manufacture or deliver.1 Thereafter, on August 4, 2021, the 

trial court sentenced Appellant to 10 to 20 years’ incarceration for attempted 

murder2 and no further penalty on the remaining charges. Appellant’s 

post-sentence motion challenging the discretionary aspects of sentencing was 

denied on October 7, 2021. This appeal followed.3

Appellant raises a single issue for our review, claiming that his sentence 

was “unduly harsh and excessive under the circumstances of this case[.]” 

Appellant’s Brief at 4. Before we may conduct a merits analysis of Appellant’s 

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1 18 Pa.C.S.A. §§ 901(a), 2702(a), 6105(a)(1), 6106(a)(1), 6108, 907(a), 

2706(a)(1), 2701(a), 2705; and 35 Pa.C.S.A. §§ 780-113(a)(16) and (a)(30), 

respectively. 

2 Regarding Appellant’s attempted murder count, the sentencing guidelines, 

including the deadly weapon used enhancement, provided for a standard 

range of 96 to 114 months, plus or minus 12 months in the mitigated and 

aggravated ranges. See N.T. Sentencing, 8/4/21, at 5. Thus, while at the 

statutory maximum, see 18 Pa.C.S.A. § 1102(c), Appellant’s sentence falls 

within the aggravated range of the applicable sentencing guidelines by six 

months.

3 Appellant and the trial court complied with Pa.R.A.P. 1925.
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discretionary aspects of sentencing claim, we must determine whether he 

properly invoked this Court’s jurisdiction. See Luketic, supra.

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, 

[see] 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, [see] 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations 

omitted).

Instantly, Appellant filed a timely notice of appeal, properly preserved 

his claims by filing a post-sentence motion, and included a Rule 2119(f) 

statement in his brief.4 See Appellant’s Brief at 18-27. Thus, we turn to 

whether he raised a substantial question. A substantial question is raised by 

demonstrating that the trial court’s actions were inconsistent with the 

Sentencing Code or contrary to a fundamental norm underlying the sentencing 

process. Commonwealth v. Bonner, 135 A.3d 592, 603 (Pa. Super. 2016). 

This issue is evaluated on a case-by-case basis. Id. This Court will not look 

beyond the statement of questions involved and the prefatory Rule 2119(f) 

statement to determine whether a substantial question exists. 

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4 We note that Appellant’s Rule 2119(f) statement is not “a concise statement 

of the reasons relied upon for allowance of appeal.” See Pa.R.A.P. 2119(f) 

(emphasis added). In fact, Appellant’s 10-page Rule 2119(f) statement 

doubles the portion of his brief used to argue and develop the merits of his 

actual claim – only five pages long. 
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Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) (citation 

omitted). Moreover, for purposes of determining what constitutes a 

substantial question, “we do not accept bald assertions of sentencing errors,” 

but rather require an appellant to “articulat[e] the way in which the court’s 

actions violated the sentencing code.” Commonwealth v. Malovich, 903 

A.2d 1247, 1252 (Pa. 2006).

Upon review, we conclude that Appellant failed to articulate a substantial 

question within his Rule 2119(f) statement. Rather, Appellant outlines 

miscellaneous and dissociated examples5 of claims that raised substantial 

questions in prior cases, without linking them cohesively or with particularity 

to the sentence at issue. He then narrates all evidence adduced at trial and 

presented at sentencing, including multitudinous examples of mitigating 

factors recognized and considered by the trial court. Appellant’s Brief at 

21-26. Appellant ends his Rule 2119(f) statement with the following bald, 

conclusory remarks: 

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5 Appellant nakedly cited the following cases as raising substantial questions: 

Commonwealth v. Swope,123 A.3d 333, 339 (Pa. Super. 2015) (excessive 

sentence in conjunction with failing to consider mitigating factors); 

Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) 

(adequacy of the reasons given for sentencing); Commonwealth v. Raven, 

97 A.3d 1244, 1253 (Pa. Super. 2014) (excessiveness claim articulating the 

manner in which sentence violates Sentencing Code or fundamental norm 

underlying the sentencing process) Commonwealth v. Dodge, 77 A.3d 1263 

(Pa. Super. 2013) (sentencing court disregarded rehabilitation and nature and 

circumstances of the offense). See Appellant’s Brief at 20-21 (listed herein 

in the order presented by Appellant).
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Although [A]ppellant may not appeal the discretionary aspects of 

his sentence by right, [A]ppellant invokes this Court’s jurisdiction 

by including this statement pursuant to Rule 2119(f), and 

asserting that there is a substantial question that the sentence 

imposed was inappropriate under the Sentencing Code and a 

deviation from sentencing norms. This Court has held that claims 

of excessiveness may be justiciable as substantial questions based 

on the circumstances of the case and the extent to which the 

appellant’s Rule 2119(f) statement suggests that the trial court 

deviated from sentencing norms.

Id. at 26-27 (paragraphing edited, citation omitted). At no point does 

Appellant ever state, with specificity, a colorable claim alleging that his

sentence is inconsistent with a provision of the Sentencing Code or a 

fundamental norm underlying the sentencing process. See generally id. at 

18-27; see also Commonwealth v. Crawford, 257 A.3d 75, 79-80 (Pa. 

Super. 2021) (the Rule 2119(f) statement fails to raise a substantial question 

where it “fails to explain what portion of the Sentencing Code, if any, with 

which his sentence was inconsistent or how it ran contrary to fundamental 

sentencing norms.”).

Ostensibly, Appellant’s Rule 2119(f) statement implies that the trial 

court failed to adequately consider mitigating factors in imposing Appellant’s

sentence. See Appellant’s Brief at 26 (after outlining several mitigating 

factors presented to the trial court, Appellant argues that “[c]ollectively, these 

facts warrant imposition of” a lower sentence). Our case law is clear, however, 

that claims of inadequate consideration of mitigating factors do not raise a 
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substantial question.

6 See Crawford, 257 A.3d at 79; see also 

Commonwealth v. Velez, 273 A.3d 6, 10 (Pa. Super. 2022) (noting that the 

“weight accorded to the mitigating factors or aggravating factors presented to 

the sentencing court is within the [sentencing] court’s exclusive domain.”).

For the reasons stated above, we conclude that Appellant failed to raise 

a substantial question necessary to invoke this Court’s jurisdiction to consider 

the merits of Appellant’s sole claim raised on appeal. Consequently, we quash 

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6 Were we to liberally construe Appellant’s Rule 2119(f) statement as asserting 

that the trial court failed to consider mitigating factors when imposing 

sentencing in the aggravated range, see Commonwealth v. Smith, 206 

A.3d 551, 567 (Pa. Super. 2019) (substantial question raised claiming the trial 

court erred by imposing an aggravated range sentence without consideration 

of mitigating circumstances), we would nevertheless adopt the trial court’s 

well-reasoned opinion to conclude Appellant’s claim is without merit. 

Specifically, and as conceded by Appellant within his appellate brief, the trial 

court possessed a pre-sentence investigation report, considered the entire 

record including various mitigating circumstances presented at trial and 

sentencing, and provided an extensive and detailed statement of its rationale 

for imposing Appellant’s sentence on the record. See Trial Court Opinion, 

12/15/21, at 8-11; see also N.T. Sentencing, 8/4/21, at 31-36. Moreover, 

the trial court imposed sentence solely on Appellant’s attempted murder count 

with no further penalty on his remaining counts, where the standard range of 

the sentencing guidelines allowed for an aggregate standard range of 240 to 

328 months and statutory maximum of 87 years, and the Commonwealth 

requested a 15 to 30 year sentence. See Commonwealth Sentencing 

Memorandum, 8/3/21, at 1, 3. Accordingly, we would conclude Appellant’s 

claim is unavailing as he cannot demonstrate that his aggravated range 

sentence on one count of his 11 count conviction was “clearly unreasonable” 

as required to warrant relief. Commonwealth v. McCarthy, 180 A.3d 368, 

380 (Pa. Super. 2018) (explaining, where an appellant is sentenced within the 

aggravated range of the sentencing guidelines, 42 Pa.C.S.A. § 9781(c)(2) 

provides that “this Court may only vacate [a] sentence if [the] case involves 

circumstances where the application of the guidelines would be clearly 

unreasonable.”) (original brackets and quotation marks omitted).
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Appellant’s appeal. Because we have adopted the trial court’s opinion as our 

own in support of our alternate conclusion set forth footnote six, we direct the 

parties to attach a copy of the court’s opinion to all future filings pertaining to 

the disposition of this appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2022
Circulated 06/28/2022 11:11 AM