J-S10019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEMETRIUS FEMI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 752 EDA 2022

Appeal from the Judgment of Sentence Entered February 14, 2022

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

No(s): CP-51-CR-0005626-2019

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 08, 2023

Demetrius Femi appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, after entering a hybrid guilty 

plea to third-degree murder,1 conspiracy,2 carrying a firearm in Philadelphia,3

and possession of an instrument of a crime (PIC).

4

 After review, we affirm. 

Femi was arrested on June 20, 2018, and he entered a hybrid guilty plea 

on May 25, 2021. At the guilty plea hearing, the prosecutor read the following 

facts into the record: 

On June 7[], 2018, Philadelphia police officers were called out to 

the address of 1831 South 58th Street for a report of a hospital 

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1 18 Pa.C.S.A. § 2502. 

2 Id. at § 903. 

3 Id. at § 6108.

4 Id. at § 907. 
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case [at approximately] 12:42 [p.m.] Upon arrival, they 

discovered the victim, Zahir [] Lyons [], in his second[-]floor room 

at [the South 58th Street] location,[] suffering two gunshots to the 

head. [Lyons] was pronounced dead on scene. []

[Thereafter,] detectives received a phone call from the victim’s 

mother, Brenda Graham, who reported to them that [Lyons’] 

[s]ocial [s]ecurity and debit cards were being used at various 

locations. Detectives [] recovered [surveillance] video [from 

those locations] showing [] three or four individuals [] using the 

ATM or making purchases at the time that showed up on [Lyons’ 

bank] statements []. 

One of those individuals was identified. He was never actually 

using the card, but he was present with the other individuals at 

the time. He was identified as this defendant, [] Femi. [] Femi 

was brought into the Homicide Unit after he was arrested on a 

warrant for using [] or conspiring [] to use [Lyons’] debit cards or 

[s]ocial [s]ecurity cards. 

A statement was taken from [Femi] by Detective Shawn Leahy[.] 

[Femi] admitted to detectives that he lived at the location of 1831 

South 58th Street. It was a rooming house. [Lyons] lived there 

also, and that on the day of this incident, there as an argument 

between [Femi] and [Lyons.] [Lyons’] brother was also present. 

[Femi] said that [Lyons’] brother waved a gun at [] Femi and his 

girlfriend and [then Lyons] evicted [them] from the rooming 

house. 

Femi then left with his girlfriend. [Femi] was telling [his friend, 

Kareem, about the incident]. [] Kareem told [Femi] that [Femi]

had to go back and take care of what happened and that he 

couldn’t let that go. [Femi] took a revolver from [] Kareem. 

[Femi] went to the rooming house[,] went up to [Lyons’] room 

and shot [Lyons] twice in the head[. Femi then] ran and gave the 

gun back to Kareem. [Femi also] stated that [] he did not have 

any knowledge that [] somebody was using [Lyons’] debit or 

[social security] cards. 

N.T. Guilty Plea, 5/25/21, at 12-13. 

Femi was permitted to supplement the facts as follows: 

[] At the time that [Lyons] and his brother evicted [Femi] and his 

[pregnant] girlfriend, their two children[, a newborn and a twoyear-old,] were present in the room. [They were also] present 
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when the gun was produced by [Lyons’] brother. Femi [also]

indicated that [] after [he and his girlfriend] had agreed to leave

and pack up all of their belongings, [] Femi [stated] that[,] 

“Everybody was trying to get me to do something to [Lyons] and 

I’m always like ‘No, no, no. He got peoples, he got peoples[.] I’m 

not touching that man.[]” [Femi] thought that [Lyons] was a 

reasonable person and that [Femi] could talk to [him.] Kareem 

kept telling him, “You should go around there and shoot [Lyons].” 

[Femi] kept saying, “No. I’m not doing that. [Kareem] kept saying

[], “Walk over to the house. Let’s walk over to the house.” [] 

Ultimately, [Femi] agreed to walk with Kareem back to [Lyons’] 

residence. 

Id. at 14-15.

The court deferred sentencing and ordered a presentence investigation 

(PSI) report and a psychiatric report. On February 14, 2022, Femi was 

sentenced to 20 to 40 years’ incarceration for third-degree murder, 10 to 20 

years’ incarceration for conspiracy, and five years’ probation for each of the 

two remaining firearms charges, all to run consecutively. Accordingly, his 

aggregate sentence is 30 to 60 years’ incarceration, followed by 10 years of 

probation. Femi filed a motion for reconsideration of sentence on February 

23, 2022, which the trial court denied. Femi filed a timely notice of appeal, 

and he and the trial court have both complied with Pa.R.A.P. 1925. Femi 

raises one issue for our review: “Is the sentence imposed unduly harsh and 

excessive under the circumstances where, inter alia, the lower court relied 

upon an improper factor in fashioning the sentence?” Appellant’s Brief, at 4.5

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5 A defendant is not precluded from appealing the discretionary aspects of his 

sentence following a hybrid guilty plea because there has been no bargain for 

a specific or stated term of sentence in the negotiated plea agreement. 

Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005); 

Commonwealth v. Dalberto, 648 A.2d 16, 21 (1994). 
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Femi challenges the discretionary aspects of his sentence, from which 

there is no automatic right to appeal. See Commonwealth v. Austin, 66 

A.3d 798, 807-08 (Pa. Super. 2013). Rather, when an appellant challenges 

the discretionary aspects of his sentence, we must consider his brief on this 

issue as a petition for permission to appeal. Commonwealth v. Yanoff, 690 

A.2d 260, 267 (Pa. Super. 1997). Prior to reaching the merits of a 

discretionary aspects of sentencing issue,

[this Court conducts] 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 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation 

marks and some citations omitted).

Presently, Femi filed a timely notice of appeal and preserved his issues 

in a post-sentence motion for reconsideration. Further, Femi’s brief includes 

a concise statement of reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of his sentence pursuant to Rule 2119(f). 

Thus, we must determine if Femi raises a substantial question. 

A substantial question exists 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.” Austin, supra
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at 808. Additionally, “we cannot look beyond the statement of questions 

presented and the prefatory Rule 2119(f) statement to determine whether a 

substantial question exists.” Commonwealth v. Radecki, 180 A.3d 441, 

468 (Pa. Super. 2018). 

Femi first argues that his sentence is excessive because the sentencing 

court, in imposing consecutive sentences for third-degree murder and 

conspiracy, failed to consider mitigating factors, including his history of being 

physically abused, as well as his history of mental health issue and drug use. 

See Appellant’s Brief, at 28. Femi also argues that the sentencing court 

considered an improper factor found in the Commonwealth’s statement of 

“facts,” which included that Femi “stole [and used]” Lyons’ bank cards. Id. at 

29. 

Upon review, we determine that Femi has raised substantial questions 

that warrant allowance of appeal. Indeed, a defendant’s claim that his 

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

consider mitigating factors, raises a substantial question. See 

Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) 

(substantial question raised where defendant challenged consecutive 

sentences as excessive and claimed court failed to consider rehabilitative 

needs and mitigating factors). See also Commonwealth v. Raven, 97 A.3d 

1224, 1253 (Pa. Super. 2014) (substantial question raised where defendant 

challenged sentence as excessive, and court failed to consider mitigating 

factors). Further, Femi’s claim that the trial court considered a fact not in 
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evidence also raises a substantial question. Commonwealth v. Penrod, 578 

A.2d 486, 490 (Pa. Super. 1990) (substantial question raised where defendant 

claimed sentencing court considered facts not of record). Accordingly, we will 

proceed to address Femi’s claims on their merits. 

This Court’s review of a claim for abuse of discretion in sentencing is 

well-settled. 

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, 

an 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008). 

Femi contends that the trial court’s consecutive sentencing scheme is 

excessive because: all four offenses are related to a single criminal incident; 

it results in a de facto life sentence because he is currently 28 years old and

could potentially be incarcerated until he is over 85 years old; and he did not 

voluntarily enlist, but rather was pressured to carry out Lyons’ murder. See 

Appellant’s Brief, at 37-38. Femi also asserts that the trial court failed to 

consider Femi’s personal trauma,6 extreme remorse, severe mental and 

physical health conditions, homelessness and rehabilitative needs, as well as 

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6 Femi’s personal trauma includes that he had been physically abused by his 

father, uncles and male cousins, that his mother had emotionally abused him, 

that his godfather (his father’s best friend) had performed oral sex on him, 

and that his father had physically abused his mother before they separated. 

See Appellant’s Brief, at 28. 
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his immediate, complete, and tearful acceptance of responsibility. Id. at 39. 

Femi is entitled to no relief. 

Pursuant to 42 Pa.C.S.A. § 9721, it is within a trial court’s discretion to 

impose sentences of imprisonment consecutively or concurrently to one 

another. That decision will not be disturbed absent a finding of manifest 

excessiveness of an aggregate sentence. Id. at § 9721(a). We highlight that 

a single incident may support multiple convictions. Commonwealth v. 

Anderson, 650 A.2d 20, 22 (1994) (“[T]he same facts may support multiple 

convictions and separate sentences for each conviction[,] except in cases 

where the offenses are greater and lesser included offenses”). See 

Commonwealth v. Williams, 559 A.2d 25 (1989) (crimes merge when they 

have same elements—i.e. lesser included offenses—and same facts); see also 

Commonwealth v. Calhoun, 53 A.3d 281, 287 (Pa. Super. 2012) (where 

sentences do not merge, defendant is not entitled to “volume discount” in 

being sentenced). 

Additionally, “Pennsylvania does not recognize a definitive term of 

imprisonment as a de facto [life without parole] sentence. Nor have we 

determined there is a particular age at time of earliest release that is 

presumptively the equivalent of a life sentence.” Commonwealth v. 

Anderson, 224 A.3d 40, 46 (Pa. Super. 2019).

7

 In Anderson, this Court 

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7 We note that the defendant in Anderson was a minor at the time the crime 

occurred. 
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determined that defendant’s minimum release date of age 67 was not a de 

facto life sentence where defendant failed to establish that he would not 

survive until this date or that there was no opportunity for meaningful life 

after release. Id. at 47. Further, in Commonwealth v. Austin, 66 A.3d 798

(Pa. Super. 2013), this Court considered a defendant’s claim that consecutive 

sentences in 47 out of a total of 96 counts of possession of child pornography

resulted in a de facto life sentence. The Court rejected the defendant’s claim, 

reasoning that an aggregate sentence of 35 to 70 years’ incarceration was not 

a life sentence for the 28-year-old defendant. Id. at 801 n.1, 807.

8

Moreover, when fashioning a sentence, the trial court shall impose total 

confinement consistent with the protection of the public, the gravity of the 

offense as it related to the impact on the victim’s life the community, and the 

rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b). See also 

Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa. Super. 2004) (question 

is whether sentencing court balanced relevant factors and imposed reasonable 

sentence). Additionally, where a court has the benefit of a PSI, we presume 

the court was aware of and weighed this information when making its 

sentencing decision. Moury, supra at 175. 

Further, Femi’s conspiracy and third-degree murder convictions, 

although stemming from the same facts, do not merge. See Commonwealth 

v. Servich, 602 A.2d 1138 (Pa. Super. 1992) (third-degree murder conviction 

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8 The Court found that the appellant in Austin did not raise a substantial 

question but nonetheless considered the claim on the merits. 
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stems from actions related to killing, conspiracy conviction rests on existence 

of agreement). Indeed, Femi is not entitled to a volume discount in his 

sentence. Calhoun, supra. 

Additionally, because the sentence in Austin was not a de facto life 

sentence, as the defendant would be eligible for parole at age 63 following his 

35-year minimum term of incarceration, it is axiomatic that Femi’s sentence

is not a de facto life sentence. Femi was 28 years-old at sentencing and his 

minimum incarceration term of incarceration is 30 years. Accordingly, he will 

be 58 years old when he becomes eligible for parole, see 42 Pa.C.S.A. § 

9756(b)(2), five years younger than the defendant in Austin. Moreover, Femi 

failed to establish that he would not survive until past this date or that he 

would not have the opportunity for meaningful life post release. See 

Anderson, supra. 

Finally, the trial court stated that it considered the following in 

fashioning Femi’s sentence: a PSI; a psychiatric PSI; a mitigation expert 

report; Femi’s offense gravity score (14); Femi’s prior record score (2); all 

testimony and arguments of counsel; Femi’s mental health and rehabilitative 

needs; and the need for protection of the public. See N.T. Sentencing, 

2/14/22, at 5; Trial Court Opinion, 7/5/22, at 6. The trial court also heard 

defense counsel summarize the physical and emotional abuse Femi suffered 

as a child, his lack of education, and his lifelong struggle with mental health 

and drug use and the impact that those condition had on Femi when Kareem 

“pressured” Femi to go back to Lyons’ home and shoot him. Id. at 8-13. 
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These considerations are consistent with the mandate in section 9721(b). 

Galletta, supra. 

In light of the foregoing, we conclude that the trial court did not abuse 

its discretion when it sentenced Femi to 30 to 60 years’ incarceration where 

Femi’s convictions did not merge, his sentence is not an excessive de facto

life sentence, and where the court considered and balanced mitigating factors 

and the protection of the public. Austin, supra; Williams, supra; Servich, 

supra; see also 42 Pa.C.S.A. § 9721(b). 

Next, Femi contends that the sentencing court improperly relied upon 

the Commonwealth’s inflammatory claim that Femi stole and used Lyons’ bank 

cards after the murder. Femi highlights that although, he specifically denied 

the allegation that he used, or knew that others had used, Lyons’ bank cards,

the assistant district attorney, at sentencing, summarized the “facts,” in 

relevant part, as follows: “[A]nd then after [Lyons] is left in his room dying[,] 

his debit card is stolen[.] [G]uess who is on video using that debit card along 

with others? [Femi].” N.T. Sentencing, 2/14/22, at 24.

9

 Femi is entitled to 

no relief. 

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9 Femi relies on Commonwealth v. Karash, 452 A.2d 528 (Pa. Super. 1982), 

for the proposition that a sentence is invalid if the sentencing court may have 

relied in whole, or in part, upon impermissible considerations. Id. at 528-29. 

In Karash, the defendant attempted to escape while incarcerated awaiting

sentencing for a burglary conviction. The trial court, in fashioning defendant’s 

sentencing regarding his burglary conviction considered the defendant’s 

attempt to escape in the court’s rehabilitation determination. This Court 

remanded for resentencing reasoning that the defendant had not yet been 

(Footnote Continued Next Page)
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Here, the sentencing court relied on the prosecutor’s statement because 

Femi “plainly stated” he was among the group of individuals using Lyons’ bank 

cards and a prosecutor is permitted to summarize evidence and offer 

reasonable inferences of a defendant’s guilt therefrom. Trial Court Opinion, 

supra at 8. We find no error or abuse of discretion. 

In Commonwealth v. P.L.S., 894 A.2d 120 (Pa. Super. 2006), this 

Court determined that prior uncharged criminal behavior may be considered 

in sentencing when there is evidentiary proof linking the defendant to the 

conduct. Id. at 130-31. In P.L.S., this Court found that there was evidentiary 

proof linking the defendant to the uncharged sexual abuse of two children. 

There, the defendant made statements to the state Sexual Offenders 

Assessment Board regarding this abuse and, although the defendant disputed

the age of the children involved, he did not deny that the abuse occurred. Id.

at 132. 

Further, in Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), 

our Supreme Court stated, “In accord with the long-standing principle that a 

prosecutor must be free to present his or her arguments with logical force and 

vigor, this Court has permitted vigorous prosecutorial advocacy as long as 

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convicted of escape, and thus, his due process right to a presumption of 

innocence had been violated. Unlike in Karash, the sentencing court here did 

not learn of the stolen bank cards on television or in a newspaper, but rather 

had facts, which Femi pled to at his hybrid guilty plea hearing, demonstrating 

that Femi was among a group of individuals using Lyons’ debt and social 

security cards. 
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there is a reasonable basis in the record for the prosecutor’s comments.” Id.

at 306 (citation and quotations omitted). “Any challenged prosecutorial 

comment must not be viewed in isolation, but rather must be considered in 

the context in which it was offered.” Id. at 307. 

Similar to P.L.S., there is evidentiary proof linking Femi to the use of 

Lyons’ ATM and social security cards. Indeed, Femi pled guilty to the abovestated facts, which demonstrate that Femi was among the group of individuals 

who had been using Lyons’ bank cards. See N.T. Guilty Plea, 5/25/21, at 11-

15. Specifically, the trial court was permitted to consider that although, Femi 

denied personally using Lyons’ cards and denied having knowledge that 

somebody else had used the cards, Femi did not dispute that he was seen on 

surveillance video among the group of individuals using Lyons’ cards. Id. at 

12. Thus, the prosecutor’s statement that Femi was among a group of 

individuals using Lyons’ bank cards is supported by the agreed-upon facts. 

Id. Therefore, there is a reasonable basis in the record for the prosecutor’s

statement and, as such, it was not improper. See Hutchinson, supra. 

In light of the foregoing, the sentencing court committed no error or 

abuse of discretion in fashioning Femi’s sentence. 

Judgement of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2023