J-S68027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ROBERT GRAY, :

:

Appellant : No. 2480 EDA 2014

Appeal from the Judgment of Sentence March 7, 2014,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0015175-2008

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 07, 2015

Robert Gray (“Gray”) appeals from the judgment of sentence entered 

following his convictions of third-degree murder, robbery, criminal 

conspiracy, and possessing instruments of crime. Gray pled guilty to these 

crimes and presently he challenges only the sentence imposed on these 

convictions. For the following reasons, we affirm. 

The trial court aptly summarized the facts as follows: 

On March 31, 2008, approximately 5 PM, Decedent, 

Nicholas Pisano, and Joshua McDonald were inside 

Decedent's home at 356 North Front Street, 

Philadelphia, PA when Yushwa Alwan arrived. 

Decedent and Alwan engaged in short conversation 

and Alwan left. Decedent had approximately six 

pounds of marijuana hidden in his apartment and 

Alwan knew the drugs were there. Alwan solicited 

the cooperation of [Gray] and co- conspirator Joseph 

Harville (aka Zazzy) to rob Decedent. [Gray] 

cooperated with the police from the time of his arrest 
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and gave a full statement and confession. [Gray] 

told detectives:

"Zazzy [] called me up on my cell and asked 

me what I was doing. I decided to go down 

meet and them both on Francis Street where 

his grandmother lives."

"I got to Francis Street, I parked and hung out 

a little while that’s when [Alwan] starts talking 

about this dude that had all this weed. He said 

he just left the boy’s house and the guy had 

like ten pounds of weed in the dryer. He said 

the boy had a lot of money in the Nike box in 

the back room where the dog was at. [Alwan] 

was like we should roll on the boy. He said the 

guy was a punk and we wouldn’t have to do 

nothing but scare the boy. We all agreed and 

then [Alwan] gave Zazzy the gun."

The co- conspirators purchased a pizza which they 

planned to use as a rouse to gain entry into the 

apartment by staging a pizza delivery. They planned 

for [Gray] to conduct the actually robbery. Police 

investigators later found [Gray’s] fingerprints on the 

box containing the pizza. [Gray’s] statement 

continued:

“I parked the car under the bridge around the 

corner from the boy's house, then me and 

Zazzy and [Alwan] walked around to the 

house. [Alwan] walked a little bit behind and 

showed us where the house is at, then he 

stayed back while me and Zazzy went to the 

dude’s house. I walked up the steps first and 

Zazzy was behind me. I still had the pizza with 

me and when Zazzy rang the doorbell he says 

‘delivery.’ The guy inside opens the door and 

says wrong bell, you want the back. He had a 

bible in his hand and said like two more times, 

you want the back. He’s like I’m telling you, 

you got the wrong apartment it happens all the 

time, you want the back door. I said, no, I 
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want some weed. He was like, you definitely 

got the wrong house. That’s when Zazzy 

comes up from behind me with the gun and 

pushes passed me. He knocked the pizza box 

out of my hand when he pushed me. As Zazzy 

pushed by me the guy must have seen the gun 

because he looked shocked.”

[Zazzy] shot Decedent once in the stomach causing 

his death. When McDonald observed Decedent being 

confronted he retrieved a gun from under the couch 

where he was seated and chased [Zazzy] and [Gray] 

out of the apartment and onto nearby Callowhill 

Street.

Decedent was transported to Hahnemann Hospital 

where he was pronounced dead. Dr. Greg McDonald 

performed an autopsy of Decedent’s remains and 

concluded that he died as a result of a single 

gunshot wound to the abdomen and that the manner 

of death was homicide. Commonwealth v. 

Harville, CP-51-CR-009496 -2008; 1944 EDA 2011, 

N.T. 6/29/2011 [at] 52.

Trial Court Opinion, 11/24/14, at 1-2. 

As noted above, Gray pled guilty to aforementioned crimes, and the 

trial court sentenced him to an aggregate term of thirty-five to seventy 

years of incarceration.1 Gray filed a post-sentence motion, which was 

denied on July 26, 2014. This appeal followed. 

Gray presents the following two issues challenging the sentence 

imposed by the trial court: 

 

1

 More specifically, the trial court sentenced Gray to twenty to forty years 

for third-degree murder, ten to twenty years for conspiracy, five to ten years 

for robbery, and two and a half to five years for PIC. All sentences except 

the PIC sentence were ordered to run consecutively. 
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1. Did the [trial] court abuse its discretion in 

sentencing [Gray] to the statutory maximum for 

third[-]degree murder after failing to consider 

[Gray’s] actions in taking responsibility for his 

behavior and cooperating with law enforcement, 

and after failing to consider or discuss [Gray’s] 

potential and need for rehabilitation, thus 

resulting in a manifestly excessive sentence?

2. Did the [trial] court abuse its discretion by 

sentencing [Gray] outside of the guidelines for 

conspiracy without stating sufficient reasons of 

record for doing so?

Gray’s Brief at 4. 

We begin by noting that Gray did not include his second issue in his 

Pa.R.A.P. 1925(b) statement of matters complained of on appeal. See Rule 

1925(b) Statement, 10/24/14, at 1-3. It is well settled that issues not 

included in a court-ordered statement of matters complained of are waived 

for purposes of appeal. Commonwealth v. Jackson, 10 A.3d 341, 347 n.4 

(Pa. Super. 2010); Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has 

repeatedly reiterated that this is a bright-line rule and that “in order to 

preserve their claims for appellate review, appellants must comply whenever 

the trial court orders them to file a [s]tatement of [m]atters [c]omplained of 

on [a]ppeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P.

1925(b) statement will be deemed waived.” Commonwealth v. Castillo, 

888 A.2d 775, 780 (Pa. 2005); see also Commonwealth v. Hill, 16 A.3d 

484, 494 (Pa. 2011). Here, the lower court ordered Gray to file a statement 
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of matters complained of on appeal. Trial Court Order, 9/9/14. Gray failed 

to include this issue therein, and so we must find that it has been waived.

Gray’s remaining issue challenges the discretionary aspects of the 

sentence imposed on his third-degree murder conviction. “Challenges to the 

discretionary aspects of sentencing do not entitle an appellant to review as 

of right.” Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) 

(citation omitted). 

An appellant challenging the discretionary aspects of 

his sentence must invoke this Court’s jurisdiction by 

satisfying a four-part test: (1) whether appellant has 

filed a timely notice of appeal, see Pa.R.A.P. 902 and 

903; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (3) whether 

appellant’s brief has a fatal defect, 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).

Id. 

Gary’s appeal was timely filed. Although not replicated verbatim, Gray 

raised substantially the same issue in his post-sentence motion. See Motion 

for Reconsideration of Sentence Pursuant to Pa.R.Cr.P. 720, 3/17/14, ¶¶ 6, 

8, and so we will find that he has properly preserved it for appeal. Gray has 

included a statement pursuant to Pa.R.A.P. 2119(f) in his brief, and so we 

turn to the final aspect of this inquiry: whether Gray has established a 
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substantial question that this sentence is not appropriate under the 

Sentencing Code.

In his Rule 2119(f) statement, Gray states that “his statutory 

maximum sentence for third-degree murder was contrary to the 

fundamental norms of the sentencing process because he was afforded no 

consideration for the fact that he took responsibility for his actions and 

cooperated with the police.” Gray’s Brief at 8. With this claim, Gray is 

complaining that the trial court failed to give adequate consideration to 

certain mitigating factors that he believes would militate in favor of a 

reduced sentence. “[T]his Court has held on numerous occasions that a 

claim of inadequate consideration of mitigating factors does not raise a 

substantial question for our review.” Commonwealth v. Swope, __ A.3d 

__, 2015 WL 5439772 at *4 (Sept. 16, 2015); see also Commonwealth v. 

Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015).2 

 

2

 We recognize that a claim that the trial court failed to consider mitigating 

factors in conjunction with an excessiveness claim may present a 

substantial question so as to invoke our review. See Caldwell, 117 A.3d at 

770. Gray does not raise an excessiveness claim in conjunction with this 

allegation; he simply alleges that the trial court abused its discretion 

because it did not consider this factor. Gray’s Brief at 8. However, even if 

Gray had specifically coupled this claim with an allegation of excessiveness, 

we would find that he is due no relief. The record reveals that the trial court 

did, in fact, take Gray’s cooperation and acceptance of responsibility into 

account. N.T., 3/7/14, at 21-22. It also reveals, however, that Gray’s 

“cooperation” consisted of agreeing to testify against his co-conspirators in 

conformance with his statement to the police, but at each trial he recanted 

his statement. Id. at 12-13, 17-18. 
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Gray also states that the trial court abused its discretion because “the 

court did not consider the rehabilitative needs of [Gray].” Gray’s Brief at 8. 

This allegation also fails to raise a substantial question so as to invoke our 

review. Commonwealth v. Griffin, 65 A.3d 932, 936, appeal denied, 76 

A.3d 538 (Pa. 2013). 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2015