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

v.

ISMAEL COLON

Appellant : : : : : : : : : 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
que stion 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, a fter a

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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two
- day bench trial, the trial court found Appellant guilty of crim inal attempt

– murder, aggravated assault, possession of firearm prohibited, firearms not to be carried without license, carry ing 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, delive ry, 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 murder 2 and no further penalty on the remaining charges. Appellant’s post
- senten ce 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 thi s case [.]” Appellant’s Brief at 4. Before we may conduct a merits analysis of Appellant’s

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. §§ 901(a), 2702(a), 6105(a)(1), 6106(a)(1), 610 8 , 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.J

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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 anal ysis 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 appellan t'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 t urn 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 questio n exists.

_________________ __________ ______ ____ _______ 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 1 0

- 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.J

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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 appel lant 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 examples 5 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
2 1

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

con clusory remarks :

_________________ __________ ______ ____ _______ 5 Appellant nakedly cited the following cases as raising substantial questions: Commonwealth v. Swope ,123 A.3 d 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.3 d 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 disregarde d rehabilitation and nature and circumstances of the offense). See Appellant’s Brief at 20

- 21 (listed herein in the order presented by Appellant).J

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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 exten t 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 inconsisten t 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) statemen t 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 aJ

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substantial question

. 6 S ee 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 abo ve, 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

_________________ __________ ______ ____ _______ 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) (subst antial 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 pro vided 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 Appel lant’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 month s and statutory maximum of 87 years, and the Commonwealth reques ted 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 t hat “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).J

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