J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW KANE PERKINS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 442 MDA 2020

Appeal from the Judgment of Sentence Entered February 22, 2013

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

No(s): CP

- 06

- CR

- 0003892

- 2011

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2020

Appellant, Matthew Kane Perkins, appeals nunc pro tunc from the

aggregate judgment of sentence of 20 to 40 years’ incarceration, followed by

20 years’ probation, imposed after a jury convicted him of two counts of third

degree murder, three counts of aggravated assault, possession of a firearm

by a person prohibited, possession of a firearm by a minor, possessing an

instrument of crime, and recklessly endangering another person. 1 On appeal,

Appellant challenges the sufficiency and weight of the evidence to sustain his

convictions, as well as the discretionary aspects of his sentence. After careful

review, we affirm.

_________________ __________ ______ ____ _______

1 18 Pa.C.S. §§ 2502(c), 2702(a)(1), 6105(a)(1), 6110.1(a), 907(a), and

2705, respectively.J

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The trial court summarized the facts underlying Appellant’s convictions,

as follows:

The inciden t which gave rise to Appellant ’ s conviction [s]

occurred sometime between the late night of July 29, 2011 [,] to

the early morning of July 30, 2011. On that date, a party was

being held in a garage that was located at Green and 11th Street,

Reading, Berks C ounty. See Notes of Testimony, Jury Trial,

1/30/13, 1/31/13, 2/1/13, at 35. (hereinafter N. T.[] Jury Trial).

Between twenty

- five to fifty Hispanic people were present at the

party, [as well as] Appellant, who is African American. At some

point, the party ended for an unknown reason, and people started

to leave. Id. at 37. However, after people started to leave the

party, a confrontation occurred between a group that included

some people who were at the party, including Juan Carl os

Pimental, Ceasor Rivera, [ 2 ] and Tyre Little, and a group of four or

five African Americans, including Appellant, near an unnamed

alleyway between Heckmans Court and Mulberry Street. I d. at

219, 256

- 57. A gun was visible [i] n Appellant ’ s pants. Id

. at 221.

Appellant stated that he did not want any trouble, and Rivera

approached Appellant and reached for Appellant ’ s gun. Id. at

214, 218. At this point, the other African Americans started to

attack Rivera. Id. at 219. Rivera was able to break free and

continued to fight [,] aided by Pimental and a number of other

people. Id. at 222, 258. At some point, Appellant was knocked

down, and when he stood up, he pulled out the gun he was

carrying and told everyone not to move while waving the gun in

front of him. Id

. at 223. He then tried to leave through the

alleyway towards Mulberry Street. Id. at 224. He was followed

by those who were involved in the fight, including Pimental and

Rivera. Id. at 237.

In the alleyway, Appellant fired several shots. Id. at 43

- 44.

One shot struck Pimental in the neck. Id. at 126. Appellant then

started to run towards Mulberry Street. Rivera and about five

other people pursued Appella nt. While fleeing, Appellant, without

looking back, continued to fire several shots behind him. Id

. at

45

- 47. Five shots struck Rivera, one of which struck him in the

chest. Id. at 305. Little, who attempted to flee after shots were

fired, was also sh ot in the leg. Id. at 262

- 63[]

. During this

_________________ __________ ______ ____ _______

2 We note that the transcript uses the spelling “Cesar” rather than “Ceasor.”J

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confrontation, no one else present had a gun, however, a knife

blade and a kn ife handle were later located in the alleyway. Id.

at 264, 391

- 92.

Rivera died that night as a result of the wound to his chest.

Id. at 308. Pimental was transported to Reading Hospital and was

intubated. I

d. at 126. Until the time of his death six months

later, Pimental was on a ventilat o r and quadriplegic. I d.

Pimental ’ s cause of death was d ue to the injuries he sustained.

I d. at 130. Little had trouble walking for a few days, but fully

recovered and has no present medical issues. Id. at 263.

A short time after the incident, Appellant called and spoke

to Brina Mayton over the phone. Mayton knew Appellant because

her sister was in a relationship with one of Appellant ’ s brothers.

Id

. at 324. Mayton asked Appellant about what had happened

that night, and Appellant stated that one of his boys was in trouble

and that he went to protect him then ran. Id. at 327. Appellant

adm itted over the phone that he shot someone, but said the

person had pulled out a knife. Id. at 334. After the incident,

Appellant fled to Florida, where he was later arrested and

extradited to Pennsylvania.

Trial Court Opinion (TCO), 5/21/20, at 3

- 4.

Bas ed on this evidence, the jury convicted Appellant of the above

- stated

charges. On February 21, 2013, he was sentenced to an aggregate term of

20 to 40 years’ incarceration, followed by 20 years’ probation. He did not file

a post

- sentence motion or a dire ct appeal. However, on March 6, 2014,

Appellant filed a timely petition under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541

- 9546, seeking the restoration of his post

- sentence motion

and appeal rights. After delays caused by changes in Appella nt’s counsel, the

court grant ed Appellant’s petition on November 18, 2019. Appellant filed aJ

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post

- sentence motion on December 2, 2019. 3 After a hearing, the court

denied Appellant’s post

- sentence motion on February 4, 2020. He filed a nunc

pro tunc notice of appeal on March 4, 2020

, 4 and he complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed its Rule 1925(a) opinion on May 21,

2020.

Herein, Appellant presents three issues for our review:

_________________ __________ ______ ____ _______

3 Appellant’s motion was not filed within 10 days of the court’s order granting

his petition. In the motion, Appellant’s counsel explained that it was untimely

because he had n ot received the court’s November 18, 2019 order until Friday,

November 29, 2019, which was a court holiday, making the next possible filing

date Monday, December 2, 2019. See Nunc Pro Tunc Post

- Sentence Motion,

12/2/19, at 1 (unnumbered); see also 1 Pa.C.S. § 1908 (“When any period

of time is referred to in any statute, such period in all cases

... shall be so

computed as to exclude the first and include the last day of such period.

Whenever the last day of any such period shall fall on a Saturday or S unday,

or on any day made a legal holiday by the laws of this Commonwealth or of

the United States, such day shall be omitted from the computation.”).

Appellant ’s counsel expressly reques ted that the “[c]ourt grant [Appellant] a

[n]unc [p]ro [t]unc filing on []his post

- sentence motion....” Nunc Pro Tunc

Post

- Sentence Motion at 2 (unnumbered). On December 5, 2019, the court

issued an order scheduling a hearing for February 4, 2020, thus expressly

permitting the filing of Appellant’s post

- sentence motion nu nc pro tunc and

tolling the 30

- day appeal period. See Commonwealth v. Capaldi , 112 A.3d

1242, 1244 (Pa. Super. 2015) (stating that a defendant’s untimely post

sentence motion may toll the appeal period where he explains the

untimeliness and requests that the trial court accept his motion nunc pro tunc

, and the court expressly permits the filing of the motion nunc pro tunc ).

4 We observe that Appellant’s notice of appeal incorrectly stated that he was

appealing from the February 4, 2020 order denying his p ost

- sentence motion.

Because an appeal properly lies from the judgment of sentence, we have

corrected the caption accordingly. See Commonwealth v. Shamberger

, 788 A.2d 408, 410 n.2 (Pa. Super 2001) ( en banc ).J

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1. Whether the evidence was insufficient to find [Appellant] guilty

of murder of the third degree, aggravated assault, possession of

a firearm by a minor, and possession of instruments of crime?

2. Whether the verdicts of guilty of m urder of the third degree[,]

aggravated assault, possession of a firearm by a minor, and

possession of instruments of crime were against the weight of the

evidence?

3. Did the trial court abuse its discretion in imposing sentence, in

light of the impositio n of a maximum sentence, as it is manifestly

excessive so as to inflict to[o] severe a punishment on [Appellant]

and was not warranted under the circumstances of the within case

or the factors enumerated in the Sentencing Code[,] which did not

militate in favor of total confinement of the length imposed in this

case[,] by failing to give proper consideration [to] any

rehabilitative incentive on behalf of [Appellant] and the mitigating

factors presented at sentencing[,] and focusing only on the

punitive need s of the Commonwealth to the exclusion of all

others[?]

Appellant’s Brief at 4 (unnecessary capitalization omitted).

Appellant first challenges the sufficiency of the evidence to sustain his

convictions.

In reviewing a sufficiency of the evidence claim, we must

determine whether the evidence admitted at trial, as well as all

reasonable inferences drawn therefrom, when viewed in the light

most favorable to the verdict winner, are sufficient to support all

elements of the offense. Commonwealth v. Moreno

, 14 A.3d

133 (Pa. Super. 2011). Additionally, we may not reweigh the

evidence or substitute our own judgment for that of the fact

finder. Commonwealth v. Hartzell

, 988 A.2d 141 (Pa. Super.

2009). The evidence may be entirely circumstantial as long as it

links the accused to the crime beyond a reasonable doubt.

Moreno, supra at 136.

Commonwealth v. Koch , 39 A.3d 996, 1001 (Pa. Super. 2011).

Appellant first contends, generally, that none of his convictions can

stand because “the Commonwealth had no real, direct evidence thatJ

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[Appellant] was the shooter. None of the eyewitnesses to the crimes that the

Commonwealth called to the witness stand ever identified [Appellant] as the

person who shot a gun.” Appellant’s Brief at 14

- 15.

Appellant’s argument is belied by the record. For instance, Daniel

DeLaRosa testified that he was at the party on the night of July 30, 2011, and

he witnessed the shooting afterwards from a distance of approximately 30

feet. N.T. Jury Trial at 35

- 3 6, 40. He stated that he was able to see the

shooter, who m he recognized from school. DeLaRosa then identified Appellant

in court as the person he saw shooting that night

. Id. at 44. Additionally,

Brina Mayton testified that Appellant admitted to her t hat he had shot

someone on the night of the party. Id. at 327. This evidence was sufficient

for the jury to find, beyond a reasonable doubt, that Appellant was the

individual that shot the victims in this case.

Appellant also challenges the sufficiency of the evi dence to sustain his

conviction of third

- degree murder , claiming that the Commonwealth failed to

prove that he acted with malice

. According to Appellant, the evidence

demonstrated that he fired the shots to stop the fight, and he did so as he ra n

away from the crowd that was “surg[ing] after him.” Appellant’s Brief at 17.

Appellant also maintains that the evidence did not prove that he intentionally

shot Little so as to support his c onviction of aggravated assault.

Appellant’s arguments are unconvincing. Our Supreme Court has

explained:J

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Pennsylvania retains the common law definition of murder , which

is a killing conducted “with malice aforethought.”

Commonwealth v. Santos

, ... 876 A.2d 360, 363 ( [Pa.] 2005);

Commonwealth v. Thomas

, ... 594 A.2d 300, 301 ( [Pa.] 1991).

Section 2502 of the Pennsylvania Crimes Code categorizes murder

into degrees. See generally 18 Pa.C.S. § 2502(a)

- (c). Third

degree murder is defined as “all other kinds of murder ,” i.e.

, those

committed with malice that are not intentional (first

- degree) or

committed during the perpetration of a felony (second

- degree).

Id. The pertinent provision of the aggravated assault statute

requires proof that the defendant “attempt[ed] to cause serious

bodily injury to another, or cause[d] such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme

indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).

... [T] he mens rea required for a conviction of aggravated assault,

like third

- degree murder

, is malice; only the result of the crimes

differ. See Commonwealth v. O'Hanlon

, ... 653 A.2d 616, 618

( [Pa.] 1995) (“Aggravated assault is, indeed, the functional

equivalent of a murder in which, for some reason, death fails to

occur.”)....

The overarching definition of malice was first provided by this

Court in Commonwealth v. Drum

, 58 Pa. 9 (1868):

[I]t is not malice in its ordinary understanding alone, a

particular ill

- will, a spite or a grudge. Malice is a legal term,

implying much more. It comprehends not only a particular

ill

- will, but every case where there is wickedness of

disposition, hardness of heart, cruelty, recklessness of

consequences, and a mind regardless of social duty,

although a particular person may not be intended to be

injured.

Id. at 15. This definition has been continuously repeated and

relied upon in decisions by this Court, see

, e.g.

, Commonwealth

v. Fisher

, ... 80 A.3d 1186, 1191 ( [Pa.] 2013); Santos

, 876 A.2d

at 363; Thomas

, 594 A.2d at 301; Commonwealth v. McGuire

,

... 409 A.2d 313, 316 ( [Pa.] 1979), and is incorporated into the

Pennsylvania Suggested Standard Criminal Jury Instructions for

third

- degree murder

. Pa. SSJI (Crim) § 15.2502C (2016).

While Drum ’ s definition of malice lacks finite parameters, for the

purpose of third

- degree murder or aggravated assault, “our courts

have consistently held that malice is present under circumstances

where a defendant did not have an intent to kill, but neverthelessJ

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displayed a conscious disregard for ‘an unjustified and extremely

high risk that his actions might cause death or serious bodily

harm.’” Santos

, 876 A.2d at 364 (quoting Commonwealth v.

Young

, ... 431 A.2d 230, 232 ( [Pa.] 1981)).

Commonwealth v. Packer

, 168 A.3d 161, 168 ( Pa. 2017)

.

In this case, the trial court relied on Packer to conclude that malice was

established, reasoning as follows:

In this case, the evidence examined in a light most favorable to

the Commonwealth reveals that Appellant fired multiple shots into

a crowd of people while attempting to flee. One of these struck

Pimental in the neck and another struck Rivera in the chest,

resulting in their deaths. Our Supreme Court has stated that the

reckless firing of a gun into a crowd of people is evidence that the

shooter acted with malice. [ Packer , 16 8 A.3d at 169]. Therefore,

there was sufficient evidence for the jury to conclude that

Appellant acted with malice and to find Appellant guilty of third[

- ]degree murder.

TCO at 7.

We agree with the trial court that Appellant’s act of firing a gun into t he

crowd of people in the alleyway was sufficient to demonstrate the malice

element of third

- degree murder

. See Packer , 168 A.3d at 169 (“ The

quintessential example of the level of recklessness required to constitute

malice is a defendant who shoots a gun into a crowd. If a man fires a gun

into a crowd and kills another it is murder , because the fact of the reckless

shooting of a gun into a crowd is malice in law. That wicked and depraved

disposition and that recklessness and dis regard of human life is m alice.”)

(citation and internal quotation marks omitted). The fact that the crowd was

fighting, and that several people were chasing Appellant

, does not change our

decision. Initially, Appellant fails to point to any evidence indicating that heJ

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could not have retreated w hen the fight first started. Once Appellant did begin

to flee, there is no evidence that he could not have continued to run and made

it to safety without firing his weapon . Instead, Appellant chose to shoot “with

his hand behind” him as he ran, and was “looking over his right shoulder”

towards Cesar as he fired. N.T. Jury Trial at 45, 46. Notably, multiple

eyewitnesses testi fied that no one, including Cesar, had a gun

. See id. at 48

-

49, 50, 52, 221, 264. We agree with the trial court that this evidence, viewed

in the light most favorable to the Commonwealth, was sufficient for the jury

to find that Appellant acted with malice in shooting and killing Pimental and

Cesar, and injuring Little. Therefore, his convictions for third

- degree murder

and aggravated assault must stand.

In Appellant’s next issue, he challenges the weight of the evidence to

support the jury’s verdict.

A claim alleging the verdict was against the w eight of the evidence

is addressed to the discretion of the trial court. Accordingly, an

appellate court reviews the exercise of the trial court’s discretion;

it does not answer for itself whether the verdict was against the

weight of the evidence. It is well settled that the jury is free to

believe all, part, or none of the evidence and to determine the

credibility of the witnesses, and a new trial based on a weight of

the evidence claim is only warrante d where the jury’s verdict is so

contrary to the evidence that it shocks one’s sense of justice. In

determining whether this standard has been met, appellate review

is limited to whether the trial judge’s discretion was properly

exercised, and relief will only be granted where the facts and

inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser , 18 A.3d 1128, 1135

- 36 (Pa. 2011) (citations

and internal quotation marks omitted).J

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Presently , Appellant solely argues that the verdict was against the

weight of the evidence because “it was based on speculation as to who actually

fired [the] shots and who actually possessed the gun.” Appellant’s Brief at

18. For the reasons set forth in our discussion of Appellant’s sufficiency claim,

we disagree. Several witnesses identified Appellant as the shooter, and

testified that he was the only individual who had a gun that night. Accordingly,

his cursory weight

- of

- the

- evidence argument is meritless.

In Appellant’s third and final issu e, he challenges the discretionary

aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right. Commonwealth v.

Sierra

, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant

challenging the discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four

- part test:

We conduct a four

- part analysis to determine: (1) whether

[the] appellant has fil ed 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 [the]

appellant’s brief has a fatal defect, Pa.R.A.P. 21 19(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.[] § 9781(b).

Commonwealth v. Evans

, 901 A.2d 528, 533 (Pa. Super. 2006),

appeal denied , 589 Pa. 727, 909 A.2d 30 3 (2006). Objections to

the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed. Commonwealth v. Mann

, 820

A.2d 788, 794 (Pa. Super. 2003), appeal denied , 5 74 Pa. 759, 831

A.2d 599 (2003).

The determination of what constitutes a substantial question must

be evaluated on a case

- by

- case basis. Commonwealth v. Paul

, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial questionJ

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exists “only when the appellant advan ces 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 912

– 13.

Commonwea lth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)).

In this case, Appellant timely filed his nunc pro tunc appeal , and he has

included a Rule 2119(f) statement in his appellate brief. Therein, he claims

that the court’s sentence of 20 to 40 years’ imprisonment, followed by 20

years’ probation, is “manifestly excessive, clearly unreasonable, and contrary

to the funda mental norms underlying the Sentencing Code.” Appellant’s Brief

at 10. Specifically, he contends that the court only gave “limited consideration

[to] the statutory factors” set forth in 42 Pa.C.S. § 9721(b), and it “failed to

offer reasons for its senten ce that comport with the considerations required

under [s]ection 9721(b).” Id. at 11. We conclude that Appellant preserved

these claims in his post

- sentence motion, and that they present substantial

questions for our review. See Commonwealth v. Derry , 1 50 A.3d 987, 992

(Pa. Super. 2016) ( finding that a claim that “the trial court failed to

consider relevant sentencing criteria, including the protection of the

public, the gravity of the underlying offense and the rehabilitative needs

of Appellant, as 42 Pa.C.S.[] § 9721(b ) requires[,] presents a substantial

question for our review in typical cases”) (internal quotation marks and

citations omitted); Commonwealth v. Simpson

, 829 A.2d 334, 338 (Pa.J

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Super. 2003) (declaring that a claim that the sentencing court failed to state

sufficient reasons for the sentence imposed raises a substantial question ).

However, in the argument section of Appellant’s brief, he only baldly

remarks that the court “failed to give proper consideration [to] any

rehabilitative incentive on behalf of [Appellant,]” and offers no developed

argument regarding this claim. Appellant’s Brief at 19. He also provide s no

discussion of his assertion that the court did not properly consider the other

section 9721(b) factors. Instead, Appellant focuses his argument on

contending that the court’s sentence is excessive in light of mitigating factors,

such as his young age , his lack of family support, and the circumstances of

his case, which indicate he was just “a fearful child who made a rash decision”

after a fight broke out and individuals attacked his friends. Id. at 20. Based

on these mitigating factors, Appellant i nsists that “[h]is sentence should have

been in the lower end of the sentencing guidelines.” Id.

Appellant did not argue that mitigating factors warranted a lesser

sentence in his post

- sentence motion, or in his Rule 2119(f) statement.

Therefore, he has waived this claim. See Commonwealth v. Griffin , 65

A.3d 932, 936 ( Pa. Super. 2013) ( “[I] ssues challenging the discretionary

aspects of a sentence must be raised in a post

- sentence motion or by

presenting the claim to the trial court during the sentencing proceedings.

Absent such efforts, an objection to a discretionary aspect of a sentence is

waived.” ) (citation omitted).J

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Notwithstanding waiver, we would conclude that Appellant’s sentencing

challenge is meritless. We note:

[T]he proper standard of review when considering whether to

affirm the sentencing court’ s determination is an abuse of

discretion

. ... [A]n abuse of discretion is more than a mere error

of judgment; thus, a sentencing court will not have abused its

discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the result of partiality, prejudice,

bias or ill

- will. In more expansive terms, our Court recently

offered: An abuse of discretion may not be found merely because

an appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill

- will, or such lack of support so as to be clearly

erroneous.

The rationale behind such broad discretion and the concomitan tly

deferential standard of appellate review is that the sentencing

court is in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual

circumstances before it.

Commonwealth v. Moury

, 9 92 A.2d 162, 169

– 70 ( Pa. Super. 2010)

(citation omitted).

In this case

, the trial court explained its sentencing decision in its Rule

1925(a) opinion, as follows:

In this case, the [c]ourt imposed sentences for Appellant’s

convictions of third [

- ] degree murder, ag gravated assault,

possession of firearm prohibited, possession of firearm by minor,

and possessing instrument of crime. For third[

- ] degree murder,

the standard range sentence is 84

- 240 months, mitigated to 72

months, and the statutory maximum is 480 months. For

aggravated assault, the standard range is 42

- 60 months,

aggravated to 72 months, mitigated to 30 months, and the

statutory maximum is 240 months. For possession of firearm

prohibited, the standard range is 30

- 42 months, aggravated to 54

months, mitigated to 18 months, and the statutory maximum is

120 months. For possession of firearm by a minor, the standard

range is restorative sanctions to 6 months, aggravated to 9J

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months, and the statutory maximum is 60 months. For

possessing instrument of a crime, the standard range is

restorative sanctions to 9 months, aggravated to 12 months, and

the statutory maximum is 60 months. Therefore, the sentence

the [c]ourt imposed on Appellant went above the Sentencing

Guidelines, but were within the statutory maximum.

At the time of sentencing, the sentencing guidelines were

placed on the record in accordance with 42 P[a.] C.S. [] § 9721(d).

N.T. Sentencing Hearing[, 2/21/13,] at 42

- 45. Additionally, the

[c]ourt placed numerous reasons for Appellant’s sentence on the

record:

In fashioning a sentence, I have c onsidered everything in

the pre

- sentence report. I have considered the impact on

the victims and the victims’ family. I have considered the

fact that [Appellant]’s conduct caused Mr. Pimental

immense [,] immeasurable suffering over six months. I

have considered the sentencing guidelines. I have

considered the testimony of [Appellant ’s ] probation officers

- Juvenile Probation Officers, the testimony of Mr. Snyder

and Mr. Heydt. I’ve consider his juvenile record and his

successes and failures during his supervision in the Juvenile

Justice System. I’ve considered his family background. It

is clear that he had a very weak family structure. He had

virtually no parental supervision. I’ve considered the fact

that he did not do very well in the juvenile system. He did

not do very well under supervision. He violated his juvenile

probation on a number of occasions. I’ve certainly

considered the testimony of Investigator Carrasquillo and

the videotape of Mr. Pimental. I can’t even imagine what it

would have been like for Mr. Pimental and his family during

those long six months that he was confined to a hospital bed

before he succumbed to his injuries. And I’ve certainly

considered the testimony of Mrs. Rivera. I have considered

the threat to the safety of the public that may be posed by

[Appellant] at this time and I have considered the degree of

[Appellant ’s ] culpability in fashioning my sentence

... . And I

have considered the rehabilitative needs of [Appellant].

[Appellant ’s ] conduct caused the unnecessary deaths of two

young men. What began as an innocent dance party on a

hot summer night turned into a tragedy because [Appellant]

brought a gun to the party. [Appellant] was in possession

of a gun [and] he was not legally allowed to possess a gun.J

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-

Id. at 59

- 60.

The decision to sentence outside the Sentencing

Guideline [s] is not a decision this [c]ourt undertakes lightly. This

[c]ourt caref ully considered the Sentencing [G] uidelines;

Appellant’s juvenile record; the testimony of his Juvenile

Probation Officers and his failure in the Juvenile Justice System;

the seriousness of the crime and the pain and suffering he

infl[i] cted on his victim ’s [ sic ] and their families; the need to

protect the community and deter similar future conduct; the

recommendation of the district attorney; and statements made by

Appellant.

The crime [s] committed by Appellant [were] incredibly

serious and caused immeasurable pain and suffering. This

t ragedy only occurred because Appellant brought a gun he was

not legally allowed to possess to a dance party. His actions

resulted in the death of two young m[e]n

, one [of] who [m] went

through incredible suffering for six months before succumbing to

his injuries. This [c]ourt also considered that Appellant had a

substantial history in the Juvenile Justice System,

... which he did

not respond to positively [,] and [he] continued to involve himself

in crime.

Therefore, the [c]ourt properly considered the

circumstances of this case, stated on the record the reason why it

went above the Sentencing Guidelines and imposed this sentence,

and, in light of this, imposed a sentence that was reasonable and

not manifestly excessive.

TCO at 13

- 15.

Based on the court’s discussion and the record in this case, we would

discern no abuse of discretion in the court’s sentencing decision. The court

clearly considered the mitigating factors mentioned by Appellant herein, as

well as the statutory factors set forth in section 9721(b). It also offered a

thorough explanation for his sentence. Accordingly, even if not waived, weJ

- S44005

- 20

- 16

-

would deem Appellant’s challenge to the discretionary aspects of his sentence

meritless

. 5

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/02/2020

_________________ __________ ______ ____ _______

5 We note that Appellant also cursorily ment ions that his third

- degree murder

sentences are illegal, claiming they exceed the statutory maximum term of

incarceration of 40 years. See Appellant’s Brief at 19; 18 Pa.C.S. § 1102(d)

(“[A] person who has been convicted of murder of the third degree

... shall be

sentenced to a term which shall be fixed by the court at not more than 40

years. ”). At the sentencing hearing, the court initially imposed 20 to 40 years’

incarceration, plus a consecutive term of 20 years’ probation, for each of

Appellant’s thir d

- degree murder convictions. See N.T. Sentencing at 68

- 69.

Appellant is correct that those sentences were illegal. 42 Pa.C.S. § 9754(a)

( “ In imposing an order of probation the court shall specify at the time of

sentencing the length of any term during which the defendant is to be

supervised, which term may not exceed the maximum term for which the

defendant could be confined

, and the authority that shall conduct the

supervision. ” ). However, Appellant ignores that the Commonwealth notified

the court of the illegality of those sentences, and the court amended them to

omit the probationary tail. See N.T. Sentencing at 71. Accordingly,

Appellant’s sentences of 20 to 40 years’ incar ceration for his third

- degree

murder convictions are not illegal.