J-A05007-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DARRELL MOORE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 828 EDA 2023

Appeal from the Judgment of Sentence Entered January 11, 2023

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

No(s): CP-51-CR-0004256-2022

BEFORE: DUBOW, J., KING, J., and LANE, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 17, 2024

Appellant Darrell Moore appeals from the Judgment of Sentence of 3 to 

6 years’ incarceration followed by 7 years’ probation imposed after he entered 

an open guilty plea to one count of Possession of Firearm by a Prohibited 

Person (“VUFA”).

1

 He challenges the discretionary aspects of his sentence. 

After careful review, we affirm.

A.

We glean the following factual and procedural history from the trial 

court’s Pa.R.A.P. 1925(a) Opinion and the certified record. On May 22, 2022, 

Philadelphia Police Officers stopped Appellant near the 5200 block of North 

Tabor Road and recovered from his waistband a loaded handgun, later 

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1 18 Pa.C.S. § 6105. 
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determined to be operable. Due to a 2019 burglary conviction, Appellant was 

prohibited from possessing a firearm in Pennsylvania. 

The Commonwealth charged him with the above offense and on October 

31, 2022, after the court informed Appellant of the applicable sentencing 

guidelines ranges, Appellant entered an open guilty plea. The court ordered 

a pre-sentence investigation (“PSI”) report and a mental health evaluation,

and scheduled sentencing for January 11, 2023.

Sentencing proceeded as scheduled before the Honorable Rayford 

Means. The Commonwealth argued that Appellant was a convicted felon who 

had posted multiple photos on social media of himself holding a firearm and 

emphasized that, when police picked Appellant up as he left a house that they 

had under surveillance, Appellant was carrying the firearm. The 

Commonwealth then noted that, although the standard guidelines provided a 

sentence of 4 to 8 years’ incarceration, it recommended a mitigated range 

sentence of 3 to 6 years because Appellant had taken responsibility for the 

crime.2

Appellant’s counsel argued for a sentence of 111⁄2 to 23 months’ 

incarceration with immediate parole “with some sort of inpatient – FIR with a 

substance abuse and a mental health coordinated program[.]” N.T. Sent’g, 

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2 The Commonwealth further noted that Judge Covington had sentenced 

Appellant for violating his probation to a term of incarceration of 111⁄2 to 23 

months “plus two” with immediate parole to house arrest, but following 

multiple house arrest violations, Judge Covington again released him on 

probation. Following the vacatur of the house arrest, Appellant “then picked 

up this arrest.” N.T. Sent’g, 1/11/23, at 5-6.
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1/11/23, at 5. Counsel observed, “[a]fter reviewing the PSI – and there was 

a mental health to be done for [Appellant] here[,]” that Appellant had

“extensive history with substance abuse, with PTSD” and with “witness[ing] 

massive amounts of abuse given to his paternal grandmother” with whom he 

grew up because his parents were “basically out of the picture.” Id. at 4-5. 

Appellant’s counsel also informed the court that Appellant has his GED and a 

carpentry certificate “so he does have the ability to get gainful employment if 

[the court were] to release him.” Id. at 7. Appellant’s counsel also observed 

that Appellant has two children with whom he “does not currently have a 

relationship[.]” Id. at 5. Appellant’s counsel emphasized that Appellant 

needs a coordinated counseling program addressing his substance abuse and 

mental health issues. Id. at 5.3

Appellant provided a brief allocution in which he accepted responsibility 

for the crime and emphasized that he was not harming anyone. Id. at 6.

The court then imposed sentence as follows:

All right. I’ve taken into consideration arguments of counsel. I’ve 

taken into consideration the defendant’s allocution. 

I sentence him for the protection of the public and rehabilitation 

and vindication of the Court’s authority because he’s been put on 

probation before. 

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3

In his brief, Appellant notes that the mental health evaluation conducted by

Dr. James Jones includes a diagnosis of bipolar disorder in addition to PTSD. 

Appellant’s Br. at 10, citing Appendix D (cited as “Appendix 4”). The

evaluation also notes that Appellant is addicted to alcohol. Id. 
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The sentence will be three to six years, plus seven years 

consecutive probation. 

Ten days to ask me to modify. Thirty days to take an appeal. All 

motions must be in writing.

Id. at 7. 

Appellant filed a timely post-sentence motion for reconsideration, again 

seeking 111⁄2 to 23 months’ incarceration with immediate parole. The court 

held a brief hearing at which Appellant’s counsel noted that Appellant (1) had 

already been incarcerated for a year; (2) is “responsible for” two children; (3)

has a job waiting for him if the court would “allow him to be paroled early;” 

(4) has a history of nonviolence; and (5) cooperated with police officers when 

they arrested him for this VUFA violation. N.T. Hr’g, 2/16/23, at 4. The court 

summarily denied the motion.

Appellant timely appealed. Both Appellant and the court complied with 

Pa.R.A.P. 1925. 

B.

Appellant raises the following issue for our review: “Did the sentencing 

court err when it imposed a manifestly excessive and unreasonable sentence?” 

Appellant’s Br. at 4. This issue challenges the discretionary aspects of his 

sentence. 

Challenges to the discretionary aspects of sentence are not appealable 

as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 

2015). Rather, an appellant challenging the sentencing court’s discretion 
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must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2) 

properly preserving the issue at sentencing or in a motion to reconsider and 

modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a 

separate section of the brief setting forth “a concise statement of the reasons 

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence[;]” and (4) presenting a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code. Id. (citation 

omitted).

Appellant preserved the issue in a post-sentence motion, timely 

appealed, and included a Rule 2119(f) Statement in his brief. We, thus, 

proceed to consider whether Appellant has raised a substantial question for 

our review. 

We determine on a case-by-case basis whether an appellant has raised 

a substantial question regarding discretionary sentencing. Commonwealth 

v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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.” Id. (citation and quotation marks 

omitted).

In his Rule 2119(f) Statement, Appellant asserts that the court imposed 

a “manifestly excessive and unreasonable sentence” by failing to balance the
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sentencing factors, i.e., the protection of the public, the gravity of the offense, 

and Appellant’s rehabilitative needs. See Appellant’s Br. at 7, citing 42 

Pa.C.S. § 9721(b). He also asserts that the court relied on evidence outside 

the record in imposing sentence. Id. at 7. We conclude Appellant has raised

a substantial question. See Commonwealth v. Williams, 69 A.3d 735, 740 

(Pa. 2013) (concluding that an assertion that the sentence was manifestly 

excessive and disproportionate to the appellant’s crimes presented “plausible 

arguments” that the sentence was “contrary to the fundamental norms which 

underlie the sentencing process.”). We, thus, turn to the merits of Appellant’s 

claim that the court failed to consider the sentencing factors prior to imposing 

its sentence.

C.

We consider the merits of Appellant’s claim mindful that sentencing is 

vested in the sound discretion of the sentencing court, and we shall not disturb 

a sentence absent a manifest abuse of discretion. Commonwealth v. 

Summers, 245 A.3d 686, 692-93 (Pa. Super. 2021). 

In this context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, by 

reference to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision.

Id. at 693 (citation omitted). 

Thus, in support of a claim that the sentencing court abused its 

discretion, an appellant “must establish, by reference to the record, that the 
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sentencing court ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision.” Williams, 69 A.3d at 741 (citation omitted).

“Sentencing in Pennsylvania is individualized, and requires the trial court 

to fashion a sentence ‘that is consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the victim and 

on the community, and the rehabilitative needs of the defendant[.]’” 

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (quoting 42 

Pa.C.S. § 9721(b)). Additionally, when sentencing to total confinement, the 

court must consider “the history, character, and condition of the defendant[.]” 

42 Pa.C.S. § 9725. 

Our review is guided by the express standards set forth in the 

Sentencing Code:

(c) Determination on appeal.—The appellate court shall vacate 

the sentence and remand the case to the sentencing court with 

instructions if it finds:

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable; 

or

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable.
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In all other cases the appellate court shall affirm the sentence 

imposed by the sentencing court.

(d) Review of record.—In reviewing the record the appellate 

court shall have regard for:

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(c), (d). 

When a sentencing court has reviewed a presentence investigation 

report, we “presume” that the court properly considered and weighed all 

relevant factors, including mitigating factors. Commonwealth v. Devers,

546 A.2d 12, 18 (Pa. 1988). 

In Devers, our Supreme Court extensively reviewed the sentencing 

principles underlying the discretion exercised by a sentencing court before 

emphasizing that sentencers who have obtained a PSI report are under “no 

compulsion to employ checklists or any extended or systematic definitions of 

their punishment procedure.” Id. The Court emphasized that, “[h]aving been 

fully informed by the pre-sentence report, the sentencing court's discretion 

should not be disturbed.” Id. “This is particularly true, we repeat, in those 

circumstances where it can be demonstrated that the judge had any degree 
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of awareness of the sentencing considerations, and there we will presume also 

that the weighing process took place in a meaningful fashion.” Id. See also

Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010) 

(reiterating in an appeal of a VOP sentence that the “sentencing court need 

not undertake a lengthy discourse for its reasons for imposing a sentence or 

specifically reference the statute in question, but the record as a whole must 

reflect the sentencing court’s consideration of the facts of the crime and 

character of the offender.” (citations omitted)).

Here, Appellant asserts that the sentencing court improperly weighed 

the gravity of the offense because his crime involved no victims, he had not 

shot the firearm, and he has no history of crimes of violence, only burglary of 

an unoccupied dwelling. Appellant’s Br. at 8-9. He acknowledges the 

seriousness of his crime but minimizes it by asserting that “the circumstances 

of this case represent stupidity and bravado,” and blaming mainstream media 

for “glamoriz[ing]” firearms which led to Appellant seeking “social recognition 

on Instragram.” Id. Further, he argues that the court failed to impose an

individualized sentence because the court did not consider his mental health 

history and his need for treatment. Id. at 9-10.4 

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4 Appellant also contends that the court relied on “improper factors, which 

were also not in evidence.” Appellant’s Br. at 12. As the sentencing court 

noted in its Rule 1925(a) Opinion, Appellant did not identify what “improper 

factor” he was challenging on appeal, leaving the trial court to guess that

(Footnote Continued Next Page)
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In its Rule 1925(a) Opinion, the sentencing court acknowledged that it 

“did not speak at length,” but noted that it “need not undertake a lengthy 

discourse for its reasons for imposing a sentence,” provided “the record as a 

whole [ ] reflect[s] the sentencing court’s consideration of the facts of the 

crime and character of the offender.” Tr. Ct. Op., 5/8/23, at 5 (citing Crump, 

995 A.2d at 1283). The court also observed that, in fact, “it did provide the 

reasons” for its sentence at the hearing, i.e., “for the protection of the public 

and rehabilitation and vindication of the court’s authority because he’s been 

put on probation before,” and “stat[ed] that it considered all of the arguments 

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Appellant was referring to the Commonwealth’s mention of his social media 

posts. See Tr. Ct. Op., 5/8/23, at 5. This alone is reason to find waiver. 

Pa.R.A.P. 1925(b)(4)(ii) (requiring an appellant to concisely identify each 

error to be addressed on appeal), and (vii) (directing waiver where issue not 

included and/or not raised in accordance with the provisions of Rule 

1925(b)(4)). 

Moreover, in his brief before this Court, Appellant contends that the “improper 

factor” was the court’s consideration of the vindication of its authority because

“he has been put on probation before.” Appellant’s Br. at 11-12. Again, this 

claim was not raised in his Rule 1925(b) Statement; it is, thus, waived. See, 

e.g., Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011)

(finding waiver where issue raised in brief was not concisely identified with 

sufficient detail to identify the issue for the judge in the Rule 1925(b) 

Statement).

Even if Appellant had properly preserved the claim, we would conclude it is 

meritless as a sentencing court is allowed to consider the history and character 

of Appellant in deciding whether a term of incarceration was appropriate. 42 

Pa.C.S. § 9725. Thus, the court was allowed to acknowledge that probation 

and house arrest have not worked in the past to deter Appellant from engaging 

in criminal conduct.
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of counsel and Appellant’s allocution.” Tr. Ct. Op. at 5. The court further 

explained:

The sentence was within the sentencing guidelines and did not 

constitute an unduly harsh punishment based on the severity of 

the offense. Appellant’s prior record score (“PRS”) is a 2, and the 

offense gravity score (“OGS”) for VUFA § 6105 is an 11. The 

guidelines call for a sentence of 48-66 months of confinement, 

plus or minus 12 months. The sentence of 3 to 6 years (36 months 

to 72 months) of confinement followed by 7 years of probation 

therefore falls within the mitigated range recommend by the 

guidelines.

Id. at 3. 

The sentencing court notes that “there is nothing in the record to 

suggest that this [c]ourt did not consider the presentence investigation report 

and mental health evaluation at the time of sentencing.” Id. at 4. “While this 

[c]ourt did not specifically mention the presentence investigation or mental 

health reports, this is not sufficient to overcome the presumption that the 

sentencing court has reviewed and considered the reports.” Id. The court 

further explained:

[I]t is clear from the record that this [c]ourt was informed of and 

considered Appellant’s background. This [c]ourt stated that it 

considered the arguments of counsel when fashioning Appellant’s 

sentence. Those arguments address[ed] each element of 

Appellant’s history that he claims this [c]ourt did not consider: his 

substance abuse problems, his PTSD diagnosis, and his 

tumultuous upbringing and family life. Thus, it is clear that this 

[c]ourt was aware of and considered those factors. Trial counsel 

also noted that Appellant has a GED and a carpentry certificate. 

The record also shows that this [c]ourt was aware that Appellant 

was previously convicted of burglary of an unoccupied structure, 

and that he was probation for that offense at the time he was 

found in possession of a loaded firearm. Based on this information, 
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it is clear that this [c]ourt was aware of all relevant information 

regarding Appellant’s background at the time of sentencing. 

Id. at 4.

Our review of “the record as a whole” indicates that the sentencing court 

did not abuse its discretion. No one disputes that the court had the PSI report

and mental health evaluation to which Appellant’s counsel referred during 

sentencing. Thus, pursuant to precedential authority, we presume the court 

reviewed it and, therefore, considered the relevant sentencing factors. 

Moreover, the record indicates that the court was aware of and considered 

“the facts of the crime and Appellant’s background,” including his age, his 

upbringing, his mental health and substance abuse issues, and his need for

treatment, before issuing its sentencing decision. The court did not “appl[y]

the guidelines erroneously,” and the application of sentencing guidelines—in 

this case, a mitigated range sentence—was not “clearly unreasonable.” 42 

Pa.C.S. § 9781(c)(1), (2). 

Moreover, the record here does not indicate that the court “ignored or 

misapplied the law, exercised its judgment for reasons of partiality, prejudice, 

bias or ill will, or arrived at a manifestly unreasonable decision” in imposing a 

mitigated range sentence. Williams, 69 A.3d at 741. Accordingly, pursuant 

to 42 Pa.C.S. § 9781(c), we must affirm the Judgment of Sentence.

Judgment of Sentence affirmed.
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Date: 5/17/2024