J-S91018-16

*

Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ROBERT CHARLES LOWDEN

Appellant No. 830 MDA 2016

Appeal from the Judgment of Sentence April 11, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002232-2015

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.: FILED MAY 04, 2017

Appellant, Robert Charles Lowden, appeals from the judgment of 

sentence entered April 11, 2016. 

On February 17, 2016, Appellant entered an open guilty plea to 

persons not to possess a firearm, aggravated assault, receiving stolen 

property, carrying a firearm without a license, and possession of a controlled 

substance.1 In the underlying incident, Appellant held a gun to a man’s 

head. See Notes of Testimony (N. T.), Trial, 2/17/16, at 3. The gun was 

stolen, and Appellant, a felon, did not have a license to carry. Id. at 4-5. In 

Appellant’s possession was ten grams of synthetic marijuana. Id. at 5.

____________________________________________

1 18 Pa.C.S. §§ 6105, 2702(a), 3925, 6106, and 35 P.S. §780-113(a)(16), 

respectively.
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Appellant was sentenced to nine to twenty years of incarceration. In 

fashioning this sentence, the court relied on a pre-sentence investigation 

report, which detailed Appellant’s lengthy criminal history as well as his 

mental health issues and troubled childhood. See Notes of Testimony (N. T. 

Sentencing), 4/11/16, at 11-14. Specifically, Appellant had six prior juvenile 

adjudications and five prior adult convictions, and he had received various 

mental health diagnoses, including bipolar disorder. See Pre-Sentence 

Investigation at 4-12.

Appellant timely filed a post-sentence motion, which was denied. 

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. The trial court issued a 

responsive opinion.

On appeal, Appellant raises a single issue for our review:

1. Was the trial court’s sentence of 9 to 20 years of incarceration 

so manifestly excessive as to constitute an abuse of the court’s 

discretion and clearly unreasonable under the circumstances and 

was not consistent with the protection of the public, the gravity 

of the offenses, and the rehabilitative needs of [Appellant]?

Appellant’s Brief at 7.

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right. Commonwealth v. Griffin, 65 A.3d 932, 

935 (Pa. Super. 2013). To invoke this Court’s jurisdiction, an Appellant 

must satisfy a four-part test: 1) whether the appeal is timely; 2) whether 

Appellant preserved his issue; 3) whether Appellant’s brief contains a 

concise statement of the reasons relied upon for allowance of appeal 
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pursuant to Pa.R.A.P. 2119(f); and 4) whether that statement raises a 

substantial question that the sentence is inappropriate under the Sentencing 

Code. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 

2013); see also Pa.R.A.P. 2119(f).

Appellant timely filed a notice of appeal, preserved his claim in a postsentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f) 

statement. We must now determine whether he has raised a substantial 

question that the sentence is inappropriate under the sentencing code, and, 

if so, review the merits.

The determination of a substantial question must be evaluated on a 

case-by-case basis. Griffin, 65 A.3d at 935. A substantial question exists 

only where the Appellant advances a colorable argument that the sentencing 

judge’s actions were either inconsistent with a specific provision of the 

Sentencing Code, or contrary to the fundamental norms which underlie the 

sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. 

Super. 2000). A claim that a sentence is manifestly excessive many raise a 

substantial question if Appellant’s Pa.R.A.P. 2119(f) statement sufficiently 

articulates the manner in which the sentence was inconsistent with the Code 

or contrary to its norms. Commonwealth v. Mouzon, 812 A.2d 617, 627-

28 (Pa. 2002). 

Appellant’s Pa.R.A.P. 2119(f) statement claims that the sentencing 

court failed to adequately consider Appellant’s mental health issues, low 

mental acuity, and past physical abuse. See Appellant’s Brief at 13. 
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Appellant argues that the sentence imposed was an abuse of discretion and 

manifestly excessive. Id. at 13. Appellant contends that the court’s 

standard range sentence was not consistent with the protection of the public 

or Appellant’s rehabilitative needs, but instead, focused solely on the gravity 

of the offense, contrary to the requirements of 42 Pa.C.S. § 9721. Id. at 

13. 

A defendant’s contention that the trial court did not adequately 

consider mitigating circumstances, without more, does not raise a 

substantial question. See Commonwealth v. Ladamus, 896 A.2d 592, 

596 (Pa. Super. 2006). Here, Appellant acknowledges that his sentence was 

within the standard guideline range. See Appellant’s Brief at 12. Further, 

the record reflects that the court had the benefit of a pre-sentence 

investigation report, acknowledged Appellant’s history of mental illness and 

abuse, and noted the need to protect the community from Appellant. See

N. T., Sentencing, at 11-12; see also Commonwealth v. Fullin, 892 A.2d 

843, 849–50 (Pa. Super. 2006) (noting that where the sentencing judge has 

the benefit of a pre-sentence report it is presumed he was aware of and 

weighted relevant mitigating statutory factors). 

Accordingly, we conclude that Appellant has failed to raise a 

substantial question that his sentence was excessive. Consequently, a 

review of the merits of his discretionary challenge is unwarranted.

Judgment of sentence affirmed.
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P.J.E Ford Elliott joins.

P.J.E. Stevens files a concurring memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2017