### J-S74036-16
NON

### -PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. ANTHONY CROZIER 

### Appellant No. 88 EDA2016 Appeal

### from theJudgment ofSentence November 16, 2015 in

### the CourtofCommon Pleas

### of Montgomery County Criminal Division at No(s): CP-46-CR-

### 0002065-2012
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.* MEMORANDUM BY RANSOM, J.: 

### FILED NOVEMBER

### 08, 

### 2016 Anthony Crozier 

### (Appellant) appeals 

### from the

### judgment ofsentence 

### of six to 

### twenty years of incarceration plus 

### three concurrent, one to 

### five year terms following a bench 

### trial resulting in his 

### conviction 

### for criminal solicitation to 

### commit involuntary deviate sexual 

### intercourse 

### (IDSI) with a child, 

### criminal solicitation to 

### commit indecent assault

### with a person less 

### than 

### thirteen years of age, 

### criminal solicitation to 

### commit corruption of 

### minors, and 

### criminal solicitation to 

### commit sexual 

### exploitation of 

### children.' We 

### affirm.



### ' See 18 Pa.C.S. § 

### 902(a); see

### also §§ 

### 3123(b), 

### 3126(a)(7), 

### 6301(a)(1)(i), and 

### 6320(a). *FormerJustice speciallyassigned to

### the SuperiorCourt.

### J-S74036-16
In December 

### of 2011, Appellant and H.E. 

### (mother) met on AshleyMadison.com and exchanged a series 

### of messages. Notes 

### of Testimony (N.T.), 

### 4/1/15, at 11. Later

### that month, Appellant and H.E. 

### met in person on the day H.E. lost her

### job and she 

### performed oral sex on him.
Id. at 15. On January 17, 2012, during a phone 

### conversation Appellant inquired 

### whether H.E. had obtained 

### employment and when she responded she had not, he offered to pay H.E. if her 

### daughter gave him a hand 

### job.
Id. at 10, 16-17. H.E. 

### initially thought Appellant was 

### referring to her then eighteen

### -year-old 

### daughter, however, Appellant corrected H.E. to 

### clarify he
was 

### inquiring about H.E.'s eleven

### -year-old 

### daughter. Id. at 16

### -17, 75. H.E. got 

### offthe phone and the next day 

### metwith DetectiveJoseph Rudner, Jr. of Souderton Police 

### Department. 

### Id. at 18

### -19, 73-74. H.E. informed Detective Rudner

### thatAppellant had offered her$100 in exchange 

### for a hand

### job from her 

### daughter. Id. at 174-78. Subsequently, H.E. consented to having her phone calls recorded, and was directedto call 

### Appellant. Id. at 27-28.2 A series

### of

### three callswere recorded on February 16th, 19th, and 20th

### of
2012.3 Id. at 87-88. During 

### the February 16, 2012 phone call, 

### Appellant confirmed the age 

### ofthe child, confirmed 

### that he would get sexual 

### contact

2 H.E. spoketo

### Appellantagain via phone on January 22, 2012, howeverthis conversation was not recorded. N.T.,

### 4/1/15, at 86

### -89, 92.

3 The audio 

### of the three calls, marked as 

### Commonwealth's Exhibit 7, were played in 

### court and the

### transcripts ofthe calls were marked into evidence as Defense Exhibit 4. N.T.,

### 4/1/15, at 136

### -39, 122. 

## -2

### J-S74036-16
with her inexchange

### for money, and suggested the eleven

### -year-old give him

a hand

### job or a blow

### job. H.E. told 

### Appellant

### that he would need to bring a condom if he intended to have 

### intercourse with the child. 

### Appellant asked H.E. 

### at least

### three times how shewould explain the sex acts to her

### daughter and asked if H.E. had a 

### picture of 

### the child on her cell phone. He also inquired if the child had 

### "any 

### titties" and told H.E. 

### that he was 

### physically aroused dueto

### their conversation. In the second call on February 19, 2012, 

### Appellant and H.E. discussed the 

### arrangement 

### further. H.E. explained 

### thatAppellant should leave his car at a park close to her house around noon and she would 

### walk him to her home in 

### Montgomery County. During this discussion,

### Appellant masturbated while asking how the 

### encounter with the child would go. 

### Appellant attempted to 

### confirm

### thatthe child would give him a hand

### job or a blow

### job. Appellant asked at least six 

### times how H.E. explained the proposed 

### encounter with her child, including how the child reacted during the 

### explanation. He asked how the child would be dressed and inquired as to 

### whetherthe child had "a 

### little

### skirt"she could wear. In the 

### third conversation on February 20, 2012, 

### Appellant confirmed 

### that he was on the way to the meeting place. 

### Id. at 29-30. The 

### next day 

### Appellant arrived at the prearranged meeting location where he was 

### arrested. 

### Id. at 138-39. 

### Thereafter Appellant gave a 

### statement to police



## -3

### J-S74036-16
wherein he 

### admitted he had offered to pay H.E. "a couple of bucks" to have sexual

### contactwith her

### daughter. 

### Id. at 148-49. Following a bench 

### trial in April of 2015, the 

### court found 

### Appellant 

### guilty of 

### criminal solicitation to 

### commit involuntary deviate sexual 

### intercoursewith a child, criminal 

### solicitation to 

### commit indecent assault

### with

a person less than 

### thirteen years of age, 

### criminal solicitation to 

### commit corruption of 

### minors, and 

### criminal solicitation to 

### commit sexual 

### exploitation ofchildren. 

### Appellantwas sentenced to sixto

### twentyyearson the chargeof criminal 

### solicitation to 

### commit involuntary deviate sexual 

### intercourse; and
one to 

### five 

### years' incarceration 

### for each remaining charge, to run 

### concurrently. Appellant filed 

### post-sentence motions, which were denied. 

### Appellant 

### timely appealed and filed a 

### court-ordered Pa.R.A.P. 

### 1925(b) statement. The

### trial courtissued a responsive opinion. 

### Appellant presentsthe following questions 

### forour review: 1. 

### Whether Appellant's conduct did not 

### meet the elements of any of the crimes charged. 

### Whether the 

### trial court erred in denying 

### Appellant's challenge to the sufficiency of the evidence and in

### finding Appellant 

### guilty beyond a reasonabledoubt. 2. 

### Whether the 

### trial court precluded defense counsel 

### from testing thewitness' 

### credibility in a 

### truly meaningful and 

### effective manner. 3. 

### Whether the 

### trial court failed to 

### properly merge the sentences. 4. 

### Whether the 

### trial court erred in denying 

### Appellant's challenge to the 

### discretionary aspects 

### of sentencing. The sentence was excessive under the circumstances and 

### manifestly unreasonablewherethe 

### [Appellant's] guidelines were much lower 

# -4-

### J-S74036-16
than the sentence he received and the 

### court exceeded the guidelines

### without

### just cause. 

### Appellant's Briefat 10. In his 

### first issue, 

### Appellant challenges the 

### sufficiency of the evidence presented at

### trial. Appellantavers he lacked the 

### intent to 

### commit anyofthe 

### aforementioned crimes, as the 

### testimony of H.E. was 

### unreliable, the 

### text messages between he and H.E. were 

### indicative of his desire

### for H.E. alone, and

### "there was nothing morethan

### talk." Appellant's Briefat 17

### -45, 35. When 

### examining a challengetothe sufficiency ofthe evidence, our standard of review is: 

### [W]hether there was 

### sufficient evidentiary support for a 

### jury's finding to this effect, the reviewing 

### court inquires 

### whether the proofs, considered in the 

### light most favorable to the Commonwealth as 

### verdict winner, are 

### sufficient to enable a reasonable 

### jury to find 

### every element of 

### the crime beyond a reasonable doubt. The 

### court bears in mind 

### that: the Commonwealth may sustain its burden by means of 

### wholly circumstantial evidence; the entire 

### trial record should be evaluated and all evidence received considered, 

### whether or not the 

### trial court's rulings thereon were correct; and 

### the 

### trier of 

### fact, while passing upon the 

### credibility of witnesses and the 

### weight ofthe evidence, isfreeto believe all, 

### part, or none 

### ofthe evidence. 

### Commonwealth v. 

### Diggs, 949 A.2d 873, 877 (Pa. 

### 2008) 

### (citations 

### omitted). A person is

### guilty ofsolicitation to 

### commit a 

### crime ifwith the 

### intent of 

### promoting or 

### facilitating its commission he commands, encourages or requests 

### another person to engage in specific 

### conduct which would


## -5

### J-S74036-16
constitute such 

### crime or which would establish his 

### complicity in its commission or

### attempted commission. 18 Pa.C.S.A. § 902. "A person 

### commits 

### involuntary deviate sexual 

### intercourse with a child,

a 

### felony of the 

### first degree, when the person engages in 

### deviate sexual 

### intercourse with a 

### complainant who is less than 13 years of 

### age." 18 Pa.C.S.A. § 

### 3123(b). Pennsylvania's Crimes Code governs indecent assault and provides in 

### pertinent part: A person who has indecent contact 

### with the 

### complainant or causes the 

### complainant to have indecent contact 

### with the 

### person[,] is 

### guiltyof indecentassault if: * * * (7) the 

### complainant is lessthan 13yearsof

### age[.] 18 Pa.C.S.A. § 

### 3126(a)(7). Indecentcontact is defined as

### "[a]nytouching of the sexual or 

### other intimate parts of the person 

### for the purpose of arousing
or

### gratifying sexual desire, in 

### either person." 18 Pa.C.S.A. § 3101. The 

### statutory prohibition against corruption of minors and sexual 

### exploitation of

### children provideas 

### follows: §

### 6301

### Corruptionofminors (ii) Whoever, being ofthe age 

### of 18 years and upwards, by any course 

### of conduct in 

### violation of 

### Chapter 31 

### (relating to sexual offenses) 

### corrupts or tends to 

### corrupt the morals of any 

### minor less than 18 years of age, or who aids, abets, entices or encourages any such 

### minor in the commission of an offense under Chapter 31 

### commits a 

### felonyofthe 

### third degree. 18 Pa.C.S.A. § 

### 6301(a)(1)(i). A 

### corruption of minors charge, 

### therefore, encompassesany such actthe consequenceofwhich transcends anyspecific 

# -6-

### J-S74036-16

sex act and is 

### separately punishable. 

### Commonwealth v. 

### Fisher, 787 A.2d 992, 995 (Pa. Super. 

### 2001) (citing

### Commonwealth v. 

### Hitchcock, 565 A.2d 1159, 1162 (Pa. 

### 1989)). §

### 6320. Sexual

### exploitationofchildren (a) Offense defined.--A person 

### commits the offense of sexual 

### exploitation of children if he procures 

### for another person a child under 18 yearsof age

### forthe purposeofsexual 

### exploitation. *** (c) 

### Definitions.--As used in this section, the following words and phrases shall have the meanings given to 

### them in this subsection: 

### "Procure."To obtain or makeavailable 

### forsexual 

### exploitation. "Sexual 

### exploitation." Actual or 

### simulated sexual 

### activity or 

### nudity arranged 

### for the purpose of sexual 

### stimulation or 

### gratification ofany person. 18 Pa.C.S.A. § 

### 6320(a). Our review of the evidence in the record 

### supports the court's 

### verdict 

### that Appellant encouraged and

### /or requested H.E. to procure her eleven- 

### year-old 

### daughter to engage in the 

### criminal acts of 

### IDSI and indecent assault, 

### activities

### thatwould tend to 

### corruptthe morals ofanyminor. According to

### Appellant, the

### testimony of H.E. was 

### unreliable. We note this portion of Appellant's 

### argument merely attacks the 

### credibility of H.E. and 

### thus risks waiver.4 

### Appellant's Brief at 17-45. 

### Appellant selectively

4 

### See 

### Commonwealth v. 

### Gibbs, 981 A.2d 274, 281

### -82 (Pa. Super. 

### 2009), appealdenied, 3 A.3d 670 (Pa. 2010) (An 

### argument regarding the 

### credibility of a 

### witness's 

### testimony "goes to the 

### weight of the evidence, not the (Footnote ContinuedNextPage) 

## -7

### J-S74036-16 quotes 

### from the 

### text messages and phone 

### transcripts in his 

### brief in an 

### attempt to establish 

### that his 

### propositions were 

### just talk and evidenced a desire

### for H.E. alone. 

### Appellant's Briefat 35. 

### Appellant's contention 

### that his mere 

### communication is not enough to 

### amount to the crime of 

### solicitation is 

### incorrect. Appellant relies 

### heavily on 

### Commonwealth v. 

### Mlinarich, 542 A.2d 1335 (Pa. 1988) which he 

### summarizes

### thusly, 

### "the Pennsylvania Supreme Court held 

### that

### solicitation had 

### not occurred in 

### Milnarich 

### [sic] where the alleged 

### statements amounted 

### to no 

### more 

### than suggestion." Appellant's Brief at 35. (emphasis in 

### theoriginal). However, 

### solicitation was not a crime charged in 

### Mlinarich. As such, the case is inapposite. 

### Appellant also cites a passage 

### from 

### Commonwealth v. 

### Hacker, 959 A.2d 380, 387 (Pa. Super. 

### 2008), rev'd, 15 A.3d 333 (Pa. 

### 2011), which was 

### expressly reversed by our SupremeCourt in 2011.5 In its reversal, our SupremeCourt reasoned: The purpose 

### of the solicitation 

### statute is to hold accountable those who would 

### command, encourage, or request the commission of crimes by others... The 

### statute requires proof of (Footnote Continued) 

### sufficiency ofthe evidence. "). We note

### thatAppellant failed to challenge to the 

### weight ofthe evidence beforethe 

### trial court priorto sentencing or in his post-sentence 

### motion. See Pa.R.Crim.P. 

### 607(A)(1)(3); 

### Commonwealth v. 

### Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004) ("As noted in the 

### comment to Rule 607, the purpose 

### of this rule is to make it clear 

### that a challenge to the 

### weight of the evidence 

### must be raised 

### with the 

### trial judge or it will be waived. ").

5 We note 

### thatAppellantfailed to providethe full 

### citation forthe case,which would have indicated its reversal. 

### Appellant's Briefat 39. 

## -8

### J-S74036-16
such 

### encouragement, butwith the 

### intent to accomplish the acts which comprise the 

### crime, not necessarily 

### with 

### intent specific to all the elements of 

### that crime, much less those crimes 

### with elements

### forwhich 

### scienter is 

### irrelevant. 

### Commonwealth v. 

### Hacker, 15 A.3d 333, 336 (Pa. 

### 2011). A complete reading 

### of the 

### transcript between 

### Appellant and H.E. reveals

### thatAppellant persistently questioned H.E. 

### aboutthe specific, sexual conduct he could accomplish 

### with her 

### daughter, while trying to 

### determine the child's physical 

### development and proposing 

### clothing the child could 

### wear during the sex acts. 

### Further, Appellant repeatedly inquired about H.E.'s process in 

### explaining the encounter to the child, and while under the impression 

### that the discussions had occurred between the 

### mother and 

### daughter, he 

### activelyattempted to 

### determine the child's level 

### of

### interest and 

### understanding ofthe proposed conduct. Defense Exhibit4 at 7

### -12, 15-22. 

### Appellant also 

### submits 

### thatthe absence of $100 and a condom on his person is 

### probative of his lack

### of 

### intentto have sexual 

### contactwith the child. 

### Appellant's Brief at 33. 

### Appellant's 

### argument ignores the 

### fact 

### that his questions to H.E. in 

### their February 16th and February 19th 

### telephone conversations describe specific 

### conduct proscribed by 

### statute as 

### deviate sexual 

### intercourse and indecent assault, 

### i.e., (1)

### that H.E.'s eleven

### -year-old 

### daughter would place 

### Appellant's penis in her 

### mouth and 

### (2) 

### that the child



## -9

### J-S74036-16
would touch 

### Appellant's genitals 

### for his sexual 

### gratification.6 See 18 Pa.C.S.A. § 3101 

### (defining 

### "deviate sexual 

### intercourse" as sexual 

### intercourse per osor peranus between human beings); 18 Pa.C.S.A. § 3101. Taken in 

### their entirety, Appellant's communications with H.E. could reasonably have been found by the 

### trial court to have 

### constituted encouragement to (1) sexually 

### exploit the child, (2) 

### commit IDSI, (3) 

### commit indecent assault and 

### (4) 

### corruptthe morals of a minor. 

### Additionally, the evidence supports the finding 

### that the 

### encouragement to 

### commit the aforementioned crimes involved Appellant's meeting H.E. on a specific date and at a specific 

### time, namely, on February 20, 2012, at 

### 12:00 p.m., in the parking lot of a designated park in 

### Montgomery County, Pennsylvania. 

### Accordingly, Appellant's

### first issue is

### withoutmerit. In 

### Appellant's second issue, he avers 

### that defense counsel was precluded 

### from testing H.E.'s 

### credibility in a 

### truly meaningful and 

### effective
manner. 

### Appellant's Brief at 55-56. Specifically, 

### Appellant argues 

### that the 

### trial court abused its 

### discretion in sustaining an asked and answered 

### objection bythe Commonwealth. 

### Id. A 

### trial court has 

### discretion to 

### determine both the scope and the permissible 

### limits of cross

### -examination. 

### Commonwealth v. 

### Briggs, 12

6 

### It is 

### apparentfrom the

### transcripts 

### that bringing a condom was a 

### condition precedent specific to 

### Appellant having 

### intercourse with the child. This 

### manner of sexual 

### contact was not discussed 

### further, thus, the absence of a condom is negligible.

- 10 -

### J-S74036-16
A.3d 291, 335 (Pa. 2011) (citing 

### Commonwealth v. 

### Rivera, 983 A.2d 1211, 1230 (Pa. 

### 2009)). The 

### trial judge's exercise of

### judgment in 

### setting those 

### limits will not be reversed in the absence 

### of a clear abuse 

### of 

### that discretion, or an 

### error of law. 

### Id. at 335 

### (quoting 

### Commonwealth. v. 

### Birch, 616 A.2d 977, 978 (Pa. 1992) 

### (internal quotationmarks 

### omitted)). Trial counsel 

### twice 

### attempted to establish 

### that H.E. was upset 

### that Appellant had not called her 

### aftertheir meeting in December. N.T.,

### 4/1/15, at64, 72. As noted bythe

### trial court: Because... defense counsel on two occasions asked 

### [H.E.] the same 

### question, the Commonwealth's objection to the third 

### attempt on recross 

### examination was 

### properly sustained. Not only was 

### this objection properly sustained, this 

### [court] completely rejectsthe claim

### that defense counsel was precluded 

### from testing 

### [H.E.]'s credibility in a 

### meaningful way. In 

### fact, defense counsel's cross

### -examination 

### [of] [H.E.] consumes 100 pages in the notes of 

### testimony even 

### though her 

### direct 

### testimony consumes only 18 pages. These pages of 

### testimony are replete

### with defense counsel 

### testing [H.E.'s] credibility. Trial CourtOpinion, 

### 1/28/16, 17-18. We find no abuse 

### of discretion in the 

### trial court's decision to sustain the 

### Commonwealth's asked and answered

### objection. Third, Appellant avers 

### that the

### trial courtfailed to 

### properly merge the 

### criminal solicitation sentences to 

### commit involuntary deviate sexual 

### intercourse with a child, indecent assault 

### with a person less than 

### thirteen years of age, and 

### corruption of minors. Appellant's Brief at 46-54. Specifically, 

### Appellantargues:

### J-S74036-16
Since the 

### [c]orruption statute incorporates an 

### unlimited 

### variety of 

### conduct and 

### the 

### [i]ndecent [a]ssault [s]atute involves behavior 

### that can 

### further incorporate 

### [i]nvoluntary [d]eviate [s]exual acts, the 

### three charges all merge 

### for sentencing purposes and 

### Appellant should not have been sentenced 

### separately

### forthese

### threecharges. 

### Appellant's Briefat49. We disagree. A claim 

### that crimes should have merged 

### for sentencing purposes challenges the 

### legality of a sentence, which cannot be waived. 

### Commonwealth v. 

### Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (citing 

### Commonwealth v. 

### Kitchen, 814 A.2d 209, 214

### -215 (Pa. Super. 

### 2002)). Ourstandard of review in cases dealing 

### with questions of law is de novo, and ourscope 

### of review is plenary. 

### See

### Commonwealth v. 

### Kimmel, 125 A.3d 1272, 1275 (Pa. Super. 

### 2015) (enbanc) (

### "Aclaim

### that convictions merge

### for sentencing is a question of law; 

### therefore, our standard of review is de novo and our scope 

### of review is plenary."). Section 9765 of our Judicial Code provides as

### follows: No crimes shall merge

### for sentencing purposesunless

### the crimes arise

### from a single 

### criminal act and all ofthe 

### statutory elements of one offense are included in the 

### statutory elements of the 

### otheroffense. Where crimes merge 

### forsentencing purposes, the 

### court may sentence the defendant only on the higher graded offense. 42 Pa.C.S.A. § 9765. The 

### preliminary consideration under Section 9765 is

### whetherthe two crimes at issue arose 

### from a single act. This is because our courts have long held 

### that where a 

### defendant commits multiple distinct criminal acts, concepts of 

### merger do not apply... 

### [T]he proper focus is not 

### whether there was a break in 

### the chain of 

### criminal 

### activity, but 

### rather, whether the actor commits multiple

- 12 -

### J-S74036-16
criminal acts beyond 

### that which is necessary to establish the bare 

### elements of

### the additional crime. 

### If so, then the 

### defendant has 

### committed more than one 

### criminal act. The 

### rationale is to 

### preventdefendantsfrom receiving a 

### "volumediscount" on crime. 

### Commonwealth v. 

### Yeomans, 24 A.3d 1044, 1050 (Pa. Super. 2011) 

### (citations 

### omitted). The

### three crimes 

### underlyingAppellant's solicitation convictionsat issue
are separate and 

### distinct injurious acts. Here,the actions

### Appellantsolicited 

### from H.E.'s 

### daughter tended to 

### corrupt the morals of a child under the age of eighteen and was 

### separately punishable. 

### See 

### Fisher, 787 A.2d 995. 

### Appellant arranged over the phone to 

### meetwith an eleven

### -year-old 

### for the 

### distinct dual purposes of (1) engaging in indecent contact in the form of a hand

### job and (2) engaging in an actof

### deviatesexual 

### intercourse. Appellant committed 

### "multiple distinct criminal 

### acts," beyond the soliciting a hand

### job from a child, 

### thereby supporting his 

### convictions of 

### IDSI with a child, and 

### corruption of minors. 

### Yeomans, 

### supra. As 

### Appellant committed three separate criminal acts, the crimes

### forwhich he was convicted do not merge. Thus,

### Appellant's claim is 

### meritless. In his 

### fourth issue, 

### Appellant challenges the 

### discretionary aspects 

### of his sentence. Specifically, 

### Appellant contends 

### that his sentence was excessive because the 

### court imposed an aggravated range sentence

### without adequately considering 

### mitigating circumstances. 

### Appellant's Brief at 61. Moreover, 

### Appellantasserts he is an 

### "ideal candidate

### for 

### rehabilitation." 

### Id. at 62-63.

- 13 -

### J-S74036-16 Challenges tothe 

### discretionary aspects 

### ofsentencing do not 

### entitle an 

### appellant to an appeal as of 

### right. 

### Commonwealth v. 

### Sierra, 752 A.2d 910, 913 (Pa. Super. 

### 2000). Prior to reaching the 

### merits of a 

### discretionary sentencing issue: 

### [W]e conduct a 

### four-part analysis to 

### determine: (1) 

### whetherappellant hasfiled a 

### timely noticeofappeal,

### 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) 

### (most citations

### omitted), appealdenied, 909A.2d 303 (Pa. 

### 2006). 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, 812 A.2d 617, 621 (Pa. 

### 2002); Pa.R.A.P. 

### 2119(f). "The 

### requirement 

### that an 

### appellant separately set

### forth the reasons relied upon 

### forallowance ofappeal 

### furthers the purpose 

### evident in the 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) (emphasis in 

### original) (internal quotation marks

- 14 -

### J-S74036-16 

### omitted), appealdenied, 954 A.2d 895 (Pa. 

### 2008), cert. denied, 129 S. Ct. 2450 

### (2009). The 

### determination of 

### what constitutes a 

### substantial question must be evaluated on a case

### -by-case basis. 

### See 

### Commonwealth v. 

### Anderson, 830 A.2d 1013, 1018 (Pa. Super. 

### 2003). 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, 752 A.2d at 912-13. A claim

### thatthe

### trial court erred by imposing an 

### aggravated range sentence 

### without considering 

### mitigating circumstances raises a 

### substantial question 

### thatthe sentencewas not 

### appropriate underthe Sentencing Code. 

### Commonwealth v. 

### Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (citing 

### Commonwealth v. 

### Anderson, 552A.2d 1064 (Pa. Super. 

### 1988)). As an 

### initial 

### matter, we note 

### that Appellant filed a 

### timely notice 

### of appeal, preserved the 

### instant issue in a 

### motion to reconsider sentence, and included a Pa.R.A.P. 

### 2119(f) statement in his brief. 

### Therefore, our analysis 

### turns on 

### whether there is a 

### substantial question

### thatthe sentence appealed 

### from is 

### inappropriate under the Sentencing Code. 

### See 42 Pa.C.S.A. § 

### 9781(b). We conclude

### Appellant has failed to 

### present a 

### substantial question 

### for our review.

- 15 -

### J-S74036-16 Appellant argues 

### that the sentencing scheme in the 

### instant case was outside the standard range and the 

### trial court failed to give 

### sufficient consideration to 

### mitigating factors, which included his 

### children, wife, 

### work history and 

### reputation inthe 

### community. Appellant's Brief at 60. 

### Appellant acknowledges 

### that the 

### trial court considered the 

### mitigating evidence presented on

### Appellant's behalf; however, he takes issue

### with the 

### amount of deferencegiven bythe

### trial court. Appellant's Briefat 62-63. As 

### partofthe 

### mitigating circumstances in his case,

### Appellant points out: 

### Unfortunately for Appellant, he is 

### sixty years old, operates on a pre

### -internet approach to life and is 

### very generationally naïve. He 

### accordingly was not cautious in his approach to 

### internet sensationssuch as 

### theAshly [sic] Madison 

### webcite

### [sic]. Appellant's Brief at 63. We find 

### this 

### argument exceedingly unpersuasive when viewed 

### with the facts

### thatAppellant (1) established an online presence
on AshleyMadison.com, (2) exchanged a series of 

### electronic messages 

### with H.E., and 

### (3) utilized the telephone, a device 

### that has been in existence since 1876, to conduct 

### the aforementioned illegal 

### activity. See N.T., 

### 4/1/15, at 12, 16

### -17, 31-33. Here, it is uncontested 

### that the 

### trial court expressly considered the 

### mitigating evidence in fashioning an aggravated range sentence 

### that was 

### consistent with the Sentencing Code and norms 

### underlying the sentencing process Consequently, 

### Appellant failed to 

### demonstrate the existence a 

### substantialquestion

### forour review. 

### See

### Felmlee, 828 A.2d at 1107. At the 

### time of 

### sentencing, and in its 

### opinion, the 

### trial court outlined its procedure

- 16 -

### J-S74036-16
used to 

### arrive at

### Appellant's individualized sentence. N.T., 

### 11/16/15, at 

### 22- 23; Trial 

### Court Opinion, at 20-21. The 

### trial court considered: (1) the presentence 

### investigation report, arguments of counsel and the Commonwealth, (2) the 

### statements and 

### letters of Appellant's 

### family members and 

### friends, (3) the 

### gravity of the offense, (4) the Appellant's background and 

### criminal history, (6) the 

### "character and 

### attitude of 

### [Appellant]; and crafted a sentencing scheme. N.T., 

### 11/16/15, at 4, 8

### -14, 33-34. As such, 

### Appellant's dissatisfaction with his sentence does not invoke our

### jurisdiction. See

### Mouzon, 812 A.2d at 621. No 

### relief is due. 

### Judgment ofsentence 

### affirmed. Judge 

### Ott

### joins the memorandum. PresidentJudge 

### emeritusStevens concurs in the result. Judgment Entered.

J seph D. 

### Seletyn, Prothonotary
Date: 

### 11/8/2016

- 17 -