J-S37044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROY TERRY BENNETT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 180 EDA 2021

Appeal from the Judgment of Sentence Entered September 28, 2016

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

No(s): CP-51-CR-0005801-2015

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 4, 2022

Appellant Roy Terry Bennett appeals nunc pro tunc from the Judgment 

of Sentence Entered in the Court of Common Pleas of Philadelphia County on 

September 28, 2016.1 We affirm. 

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* Former Justice specially assigned to the Superior Court.

1 The lower court docket indicates the trial court imposed its judgment of 

sentence on September 28, 2016, and on October 12, 2016, a notice of appeal 

was filed. On September 5, 2017, this Court dismissed the appeal for failure 

to file a Brief for Appellant. On February 26, 2020, Appellant filed a PCRA 

petition. On November 10, 2020, the PCRA petition was granted, and 

Appellant’s post-sentence motion and direct appeal rights were reinstated

nunc pro tunc. On November 20, 2020, Appellant filed a post-sentence 

motion, and the trial court denied the same on December 9, 2020. On January 

7, 2021, counsel for Appellant filed the instant notice of appeal stating the 

appeal was from the “order entered in this matter on the 9 of December, 

2020.” (emphasis added). However, counsel for Appellant erroneously 

appealed from the December 9, 2020, Order denying the post-sentence 

motion. “In a criminal action, appeal properly lies from the judgment of 

(Footnote Continued Next Page)
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The trial court set forth the relevant facts and procedural history herein 

as follows: 

Appellant was arrested on April 29, 2015 and charged with 

Possession of a Firearm Prohibited, Criminal Trespass, Discharge 

of a Firearm into Occupied Structure, Firearms not to be Carried 

Without License, Carrying Firearms in Public in Philadelphia, 

Possession of an Instrument of Crime, Recklessly Endangering 

Another Person, and related charges. On March 15, 2016, 

Appellant waived his right to a jury trial and proceeded to a waiver 

trial before the Honorable Gwendolyn N. Bright where he was 

adjudged Guilty of the aforementioned crimes and Not Guilty of 

the remaining charges. Sentencing was deferred for a PreSentence Investigation and Mental Health report. On September 

28, 2016, Appellant was sentenced to seven to fourteen years of 

incarceration followed by six years of probation. On October 12, 

2016, Appellant filed a timely appeal to the Superior Court of 

Pennsylvania. On October 27, 2017, the appeal was dismissed for 

failure to file briefs.

The instant Post-Conviction Relief Act Petition was filed on 

February 26, 2020, On November 10, 2020, the PCRA Petition was 

granted, allowing Appellant leave to appeal nunc pro tunc to the

Superior Court and to file post-sentence motions. On November 

20, 2020 post-sentence motions were filed. On December 9, 2020, 

post-sentence motions were denied. On January 7, 2021, notice 

of appeal to the Superior Court was filed.

***

FACTS

The facts of this case are respectfully incorporated from the 

1925(a) Opinion filed on January 19, 2017 as follows:

____________________________________________

sentence made final by the denial of post-sentence motions.” 

Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super. 2001) 

(en banc) (citation omitted), appeal denied, 800 A.2d 932 (Pa. 2002). We 

have amended the caption accordingly. See Commonwealth v. Lawrence, 

99 A.3d 116, 117 (Pa.Super. 2014).
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The facts established at trial were that as of March 2015, 

Appellant had been looking for his wife whom he had reported 

missing. N.T. 3/15/20161 at 45, 47. Sometime in April of 2015, 

he discovered that she was staying at the home of Paul Bryant, 

the Complainant. Bryant lived at 3870 Wyalusing Avenue in

Philadelphia and had been dating Appellant's wife. Id. at 9.

Upon discovering his wife's location, Appellant arranged to 

enter the house with a woman named Kim who had alerted 

Appellant to his wife's location. Id. at 64. On April 19, 2015, 

Appellant followed Kim into Complainant's home and attempted to 

engage her in conversation. Id. at 11. The police were called and 

Appellant was told to leave which he did. Id. at 41.

Later that night, around midnight, Appellant returned armed 

with a sawed-off shotgun. After attracting Complainant's attention 

by throwing rocks at his upstairs windows, Appellant waited on 

the corner until Complainant came out on his porch. Id. at 12-13. 

Appellant charged toward Complainant pulling the sawed-off 

shotgun from a black duffel bag he was carrying. Id. at 13-14. 

Complainant retreated into his home closing the door behind him. 

Id. at 13. Appellant fired the shotgun at the door putting a hole in 

the front door and shattering the glass door in the vestibule. Id. 

at 14. Complainant fled to the back kitchen door where he hid. Id. 

at 15. Appellant entered the premises and ran up the stairs to the 

second floor where his wife was staying. Id. at 15-16. Unable to 

get the back door open, Complainant fled out the front door and 

ran to a neighbor's home. Id. at 16.

Police arriving at the scene encountered Complainant who 

was shook up and Appellant's wife who was upset and afraid, 

shaking and crying. Id. at 34-35. A warrant was issued for 

Appellant's arrest on April 28, 2015. Id. at 57.

Appellant testified at trial and, although he admitted to 

going to Complainant's house every day after he learned of his 

wife's location, denied any involvement in the shooting. Id. at 73.

___

1 “N.T.” refers to the Notes of Testimony taken at the waiver trial 

and sentencing before the Honorable Gwendolyn N. Bright on 

March 15, 2016 and September 28, 2016.

Trial Court Opinion, filed 3/22/21, at 1-3. 
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On January 26, 2021, Appellant filed his Pa.R.A.P. 1925(b) statement of 

matters complained of on appeal, and the trial court filed its Pa.R.A.P. 1925(a) 

Opinion on March 22, 2021. 

In his brief Appellant presents the following issues for this Court’s 

review: 

I. Whether Appellant’s sentence was unduly harsh and 

excessive[?]

II. Whether the verdict was against the weight of the 

evidence[?]

Brief for Appellant at 8. 

Appellant’s first claim pertains to the discretionary aspects of his 

sentence. It is well settled that:

challenges to the discretionary aspects of sentencing do not entitle 

an appellant to review as of right. 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 

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. § 9781(b).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa.Super. 2017) (some 

citations omitted). “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 
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(2) contrary to the fundamental norms which underlie the sentencing

process.” Id. (citation omitted).

Instantly, Appellant preserved this issue in by raising it in his post 

sentence motion, filing a timely appeal nunc pro tunc, and including a 

Pa.R.Crim.P. 2119(f) statement in his appellate brief. The Rule 2119(f) 

statement alleges the sentencing court imposed a manifestly excessive 

sentence so as to constitute too severe a punishment and failed to provide 

adequate reasons for its sentence. Appellant further asserts the sentencing 

court “made no mention that it considered Appellant's life free of crime for ten 

years and did not consider the age of the defendant and the unique facts of 

this case.” Brief of Appellant at 14. 

In light of the foregoing, we conclude that Appellant has presented a 

substantial question. See Commonwealth v. Sexton, 222 A.3d 405, 420 

(Pa.Super. 2019), appeal denied, 229 A.3d 568 (Pa. 2020) (finding excessive 

sentence claim raised in conjunction with an assertion that the trial court failed 

to consider mitigating factors raises a substantial question and that a claim 

the sentencing court failed to set forth adequate reasons for its sentence

raises a substantial question). See also Commonwealth v. Caldwell, 117 

A.3d 763, 769-770 (Pa.Super. 2015) (en banc) (holding that an assertion that 

a sentence is excessive, in conjunction with a claim that the trial court failed 

to consider all pertinent factors, raises a substantial question); 

Commonwealth v. Stalnaker, 545 A.2d 886, 889 (Pa.Super. 1988) (finding 
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a substantial question existed with respect to the appropriateness of the 

appellant's sentence based on the circumstances of the case including the 

appellant's age, lack of criminal history, and “relative harshness of a state as 

opposed to a county sentence”). 

Thus, we consider the merits of this issue and employ a well-settled 

standard of review: 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. 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.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (citation 

omitted).

“When imposing a sentence, the sentencing court must consider the 

factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public, 

[the] gravity of offense in relation to impact on victim and community, and 

[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892 

A.2d 843, 848 (Pa.Super. 2006) (citation omitted). Additionally, the 

Pennsylvania Supreme Court has determined that where the trial court is 

informed by a presentence investigation report, “it is presumed that the court 

is aware of all appropriate sentencing factors and considerations, and that 

where the court has been so informed, its discretion should not be disturbed. 
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The sentencing judge can satisfy the requirement that reasons for 

imposing sentence be placed on the record by indicating that he or she has 

been informed by the PSI; thus properly considering and weighing all relevant 

factors.” Commonwealth v. Edwards, 194 A.3d 625, 637-38 (Pa.Super. 

2018).

Aside from his summaries of various caselaw, Appellant’s argument on 

this issue is as follows: 

In the instant matter the sentencing court abused its 

discretion because the Appellant's sentence was unreasonable 

with the meaning of 42 Pa.C.S.A. § 9721(b). The record did not 

indicate more than a cursory mention of the court's reasons for 

sentencing the Appellant. (N.T. 9/28/16 at 13).

The Appellant was 53 years old and even though he had a 

criminal record, he had been crime free for over 10 years. He had 

various job opportunities and was doing volunteer work. He 

testified that he was attempting to get a bank loan to open a 

grocery store. Additionally he testified he was planning to go to 

family Court to get custody of his twins. (N.T. 9/28/16 at 12).

He was remorseful for his actions but there were emotional 

circumstances that should have led the court to give a lesser 

sentence in that another man took Appellant's wife into his house 

and wouldn't let her out.

Brief of Appellant at 18. 

The learned trial court addressed this issue as follows:

Appellant makes no assertions as to any sentencing 

violations other than to simply state that his sentence is “harsh 

and unreasonable”. Appellant was found guilty of Criminal 

Trespass (F2), VUFA (6105)(F2), Discharge of a Firearm into an 

Occupied Structure (173), VUFA (6106)(F3), VUFA (6108)(M I), 

PIC (Ml) and REAP (M2). Appellant presented for sentencing with 

a lengthy criminal record. He had a long history of juvenile arrests, 

adjudications and commitments and followed that pattern into 

adulthood. As an adult, he had four separate convictions, all 

including burglary or VUFA charges, prior to the instant case, 
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earning him a prior record score of RFEL at his sentencing. N.T. 

9/28/2016 at S. At sentencing the Commonwealth requested a 

guideline sentence of 15 to 30 years of incarceration. Id. at 8. 

Appellant was sentenced as follows:

VUFA(6105)(F2): 60 to 120 months

Criminal Trespass (F2): 24 to 48 months, followed by 6 years 

probation

Discharge of a Firearm into an Occupied Structure (F3): 42 to 84 

months

VUFA (6106)(F3): 42 to 84 months

VUFA(6108)(M1): 30 to 60 months

PIC(M1): No further penalty

REAP(M2): 12 to 24 months

All of Appellant's sentences are in the standard or mitigated 

guideline range. In order to gain relief, Appellant must show by 

any reference to the record that the sentencing court ignored or 

misapplied the law, exercised its judgment for reason of partiality, 

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

decision. Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa. 

Super. 2014). There has been no sentencing error here.

Trial Court Opinion, filed 3/22/21 at 3-4. 

Applying our deferential standard of review and upon our review of the 

record, we find no abuse of discretion. Clearly, the trial court was aware of 

the relevant sentencing factors and the sentencing guidelines, and the court 

had the benefit of both a PSI and mental health report prior to sentencing. 

The court determined the offense gravity score and both the Commonwealth 

and defense counsel agreed with its calculation. N.T. Sentencing, 9/28/16, at 

5. 
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In addition, Appellant exercised his right of allocution at the sentencing 

hearing, at which time he informed the trial court he had some job 

opportunities, was volunteering his time and working toward a GED, hoped to 

open his own business, and intended to seek to obtain custody of his twins. 

He also assured the trial court he was not a violent person and knew how to 

control his anger. Id. at 11-13. 

The trial court responded to Appellant’s remarks by noting that his 

actions were extremely violent and could have resulted in serious injury. The 

court further commented that Appellant’s extensive background with the 

criminal justice system evinced his inability to control himself. Id. at 13. The 

trial court proceeded to impose sentences each of which was within the 

standard or mitigated range of the Sentencing Guidelines. Id. at 14. 

“Although a sentencing judge must state his or her reasons for the 

sentence imposed, a discourse on the court's sentencing philosophy is not

required[; however, [t]he court must explain any deviation from the 

sentencing guidelines.” Commonwealth v. Simpson, 829 A.2d 334, 338 

(Pa.Super. 2003) (internal citations, quotation marks, and ellipsis omitted). 

Nevertheless, trial courts are permitted to use prior conviction history and 

other facts already included in the guidelines if they supplement that 

information with other sentencing factors. Id. at 339. 

While Appellant complains that the trial court did not consider certain 

mitigating factors, it is evident the court did carefully consider those factors
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at sentencing but chose not to give those mitigating factors as much weight

as Appellant would have preferred. “We cannot re-weigh the sentencing 

factors and impose our judgment in the place of the sentencing court.” 

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). 

Appellant next posits his convictions were against the weight of the 

evidence. 

When considering a weight of the evidence claim,

our role is not to consider the underlying question of whether the 

verdict was against the weight of the evidence. Rather, we are to 

decide if the trial court palpably abused its discretion when ruling 

on the weight claim. When doing so, we keep in mind that the 

initial determination regarding the weight of the evidence was for 

the factfinder. The factfinder was free to believe all, some or none 

of the evidence. Additionally, a court must not reverse a verdict 

based on a weight claim unless that verdict was so contrary to the 

evidence as to shock one's sense of justice.

Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa.Super. 2007) 

(citations omitted).

In his Statement of Matters Complained of on Appeal, Appellant merely 

stated “[t]he [c]ourt was in error in denying the post sentence motion that 

the verdict was against the weight of the evidence and insufficient as a matter 

of law filed on November 20, 2020. A detailed analysis of this issue is in the 
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post sentence motion.” See Statement of Matters Complained of on Appeal, 

filed 1/26/21, at ¶ 2.2 

In response, the trial court indicated in its Rule 1925(a) Opinion that 

Appellant had waived its challenge to the sufficiency of the evidence in that 

he had failed to specify which of the many elements of his various convictions 

on which the evidence was insufficient, and the trial court engaged in only a 

general, three-sentence discussion of his weight of the evidence challenge. 

Trial Court Opinion, filed 3/22/21, at 5. Thus, prior to considering the merits 

of this issue, we first must consider whether Appellant has preserved it for 

appellate review. 

Our Courts consistently have ruled that where the trial court directs a 

defendant to file a concise statement pursuant to Pennsylvania Rule of 

Appellate Procedure 1925, any issues not raised in that statement shall be 

waived. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa.Super. 2008) 

(citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)). In 

Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), our Supreme 

Court reaffirmed its holding in Lord and stated: “In Lord, however, this Court 

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2 Appellant did not develop a challenge to the sufficiency of the evidence in 

his appellate brief; therefore, he has waived the same. “The failure to develop

an adequate argument in an appellate brief may result in waiver of the claim

under Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140 

(Pa.Super. 2007) (en banc) (citation omitted). 
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eliminated any aspect of discretion and established a bright-line rule for waiver 

under Rule 1925 .... Thus, waiver under Rule 1925 is automatic.” See also 

Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa.Super. 2008) (noting 

that Lord “requires a finding of waiver whenever an appellant fails to raise an 

issue in a court-ordered Pa.R.A.P. 1925(b) statement”).

Rule 1925 is intended to aid trial judges in identifying and focusing upon 

those issues the parties plan to raise on appeal. The absence of a trial court 

opinion addressing a particular claim poses a substantial impediment to 

meaningful and effective appellate review. Commonwealth v. Lemon, 804 

A.2d 34, 36 (Pa.Super. 2002). Thus, Rule 1925 is a crucial component of the 

appellate process. Id. at 37. “When a court has to guess what issues an 

appellant is appealing, that is not enough for meaningful review.” 

Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super. 2001).

Furthermore, claims that are not raised before the trial court are waived. 

See Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super. 2000) 

(stating that “[a] claim which has not been raised before the trial court cannot 

be raised for the first time on appeal.”); Commonwealth v. Ryan, 909 A.2d 

839, 845 (Pa.Super. 2006) (citing Commonwealth v. Gordon, 528 A.2d 

631, 638 (Pa.Super. 1987) (reiterating that “[a] theory of error different from 

that presented to the trial jurist is waived on appeal, even if both theories 

support the same basic allegation of error which gives rise to the claim for 

relief.”)). Moreover, “[e]ven if the trial court correctly guesses the issues [an] 
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[a]ppellant raises on appeal and writes an opinion pursuant to that supposition 

the issue is still waived.” Commonwealth v. Heggins, 809 A.2d 908, 911 

(Pa.Super. 2002).

We do not condone Appellant's incorporation by reference of an analysis 

set forth in his post sentence motion in paragraphs one and two of his 

Statement of Matters Complained of on Appeal. See Commonwealth v. 

Smith, 955 A.2d 391, 393 n.5 (Pa.Super. 2008) (stating: “We do not condone 

the Commonwealth's incorporation by reference of its motion for 

reconsideration. A Rule 1925(b) statement should include a concise statement

of each issue to be raised on appeal”).

In Commonwealth v. Seibert, 799 A.2d 54 (Pa.Super. 2002), Seibert 

alleged in his concise statement that “[t]he verdict of the jury was against the 

weight of the credible evidence as to all of the charges.” Seibert, 799 A.2d at 

62 (brackets in original). The trial court dismissed Seibert's weight claim

summarily without addressing any specific weight of the evidence issue upon 

finding it was too vague to permit review, despite his raising specific reasons 

in his brief as to how the verdict was against the weight of the evidence. 

Conversely, our Supreme Court recently declined to find waiver of a 

weight claim based on a vague Rule 1925(b) statement. See Commonwealth 

v. Rogers, 250 A.3d 1209, 1223–25 (Pa. 2021). In his statement, Rogers 

included a weight claim which alleged that the verdict was against the weight

of the evidence because the testimony of specific persons was vague, 
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inconsistent, and unreliable, such that the verdict based thereon was pure 

conjecture. Our Supreme Court concluded that such a statement was not too 

vague to permit review because the issue was readily understandable from 

the context.

Upon review, we conclude that Appellant's Statement of the Matters 

Complained of on Appeal herein is more akin to that presented Seibert than

that found in Rogers. As in Seibert, Appellant raised a specific argument in 

his appellate brief on appeal as to why the verdict was against the weight of 

the evidence, namely the alleged “evasive and totally incredible” testimony of 

Paul Bryant, see Brief of Appellant at 19, but he did not include such specifics 

in his concise statement. 

Instead, he merely presented a generic weight challenge therein which 

caused the trial court to find Appellant's sufficiency claim waived based upon 

his deficient concise statement and to summarily dismiss Appellant's weight 

claim as it did not shock the court's conscience. Unlike the situation presented 

in Rogers, Appellant's specific weight argument developed on appeal was not 

readily understandable from the context of his concise statement. As such, 

we find that Appellant waived his challenge to the weight of the evidence. 

 Judgment of Sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/4/2022