J-S44005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW KANE PERKINS 

Appellant

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 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 thirddegree 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.

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

2705, respectively.
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The trial court summarized the facts underlying Appellant’s convictions, 

as follows:

The incident 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 County. 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 Carlos

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. Id. 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 Appellant. 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 shot in the leg. Id. at 262-63[]. During this 

____________________________________________

2 We note that the transcript uses the spelling “Cesar” rather than “Ceasor.”
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confrontation, no one else present had a gun, however, a knife 

blade and a knife 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. Id. at 126. Until the time of his death six months 

later, Pimental was on a ventilator and quadriplegic. Id.

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

Id. 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

admitted 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.

Based 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 direct 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 Appellant’s counsel, the 

court granted Appellant’s petition on November 18, 2019. Appellant filed a 
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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:

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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 not 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 Sunday, 

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 requested 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 nunc 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 postsentence 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 post-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). 
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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 murder 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 imposition 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 needs 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 that 
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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 35-36, 40. He stated that he was able to see the 

shooter, whom 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 that 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 evidence 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 ran 

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 conviction of aggravated assault. 

Appellant’s arguments are unconvincing. Our Supreme Court has 

explained:
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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). Thirddegree 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 nevertheless
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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, 168 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 the 

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 disregard of human life is malice.”) 

(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 he 
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could not have retreated when 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 testified 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 weight 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 warranted 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).
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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 issue, 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 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 [the] 

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.[] § 9781(b).

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

appeal denied, 589 Pa. 727, 909 A.2d 303 (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, 574 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 question 
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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 912–13.

Commonwealth 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 fundamental 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 sentence 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, 150 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.
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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 provides 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 insists 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).
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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 concomitantly

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, 992 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, aggravated 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 9
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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 considered 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.
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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 carefully 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

tragedy 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, we
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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 mentions 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 third-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’ incarceration for his third-degree 

murder convictions are not illegal.