J-S71041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD LYNN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1299 EDA 2018

Appeal from the Judgment of Sentence September 23, 2016

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

No(s): CP-51-CR-0006884-2007

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 11, 2018

Appellant Edward Lynn appeals from the judgment of sentence entered 

following his violation of probation. Appellant asserts that the trial court failed 

to state its reasons for imposing the sentence on the record. The trial court 

and the Commonwealth agree that Appellant is entitled to a re-sentencing 

hearing. We vacate the judgment of sentence and remand for re-sentencing.

The trial court summarized the relevant background of this matter as 

follows:

With respect to CP-51-CR-0006884-2007, on March 20, 2008, 

[Appellant] pled guilty to Aggravated Assault, Firearms Not to be 

Carried Without a License, and Simple Possession.[1] He was 

sentenced to eighteen to thirty six months of confinement for 

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

respectively. 
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Aggravated Assault and five years of probation for the firearms 

charge. No further penalty was given for Simple Possession.

On March 12, 2013, [Appellant] appeared before th[e c]ourt on 

CP-51-CR-0013620-2012 (not at issue in this appeal) and pled 

guilty to Possession of a Firearm Prohibited[2] and Firearms Not to 

be Carried Without a License. Th[e c]ourt sentenced [Appellant] 

to eleven and one half to twenty three months of confinement 

followed by five years of probation for Possession of a Firearm 

Prohibited and five years of probation for Firearms not to be 

Carried Without a License. On that same day, th[e c]ourt found 

[Appellant] to be in violation of its probation on CP-51-CR0006884-2007, revoked probation, and imposed a sentence of 

eighteen to thirty six months of confinement for Aggravated 

Assault and eight years of probation for Firearms Not to be Carried 

Without a License.

On May 26, 2014, while on th[e c]ourt’s probation, [Appellant] 

was arrested for Aggravated Assault and related charges. On 

September 23, 2016, [Appellant] appeared before th[e c]ourt to 

enter into a negotiated guilty plea to the 2014 charges and 

proceed with a Violation of Probation hearing on his older cases. 

At that time, [Appellant] indicated that he was not in fact guilty of 

the 2014 charges, and as such th[e c]ourt did not accept the 

negotiated plea. Th[e c]ourt then proceeded with a Daisey 

Kates[3] hearing, and found [Appellant] to be in violation of its 

probation on his 2007 and 2012 dockets. On CP-51-CR-0006884-

2007, th[e c]ourt revoked probation and sentenced [Appellant] to 

three and one half to seven years of confinement for [Firearms 

Not to be Carried Without a License] with no further penalty for 

Aggravated Assault. . . . [Appellant filed a motion for 

reconsideration of the VOP sentence on September 30, 2016, and] 

subsequently filed a Notice of Appeal to the Superior Court of 

Pennsylvania, which was quashed as untimely on May 2, 2017 

(547 EDA 2017). On April 7, 2017, [Appellant] filed a pro se

petition under the Post Conviction Relief Act (“PCRA”). On June 

30, 2017, PCRA counsel filed an Amended PCRA petition. On 

September 11, 2017, th[e c]ourt granted [Appellant’s] PCRA 

petition and reinstated his appellate rights. . . . [Appellant] did 

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2 18 Pa.C.S. § 6105.

3 Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973).
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not file a Notice of Appeal to the Superior Court for docket CP-51-

CR-0006884-2007, the instant matter, until November 15, 2017, 

more than sixty days after [Appellant’s] appellate rights were 

reinstated. As such, the Superior Court quashed the appeal as 

untimely on February 5, 2017 (3719 EDA 2017).

[Appellant] subsequently filed a PCRA petition with th[e c]ourt. 

Th[e c]ourt approved [Appellant’s] petition and reinstated his 

appellate rights nunc pro tunc on April 16, 2018. [Appellant] filed 

a timely Notice of Appeal to the Superior Court on April 26, 2018. 

Trial Ct. Op., 5/29/18, at 1-3.

The trial court did not order Appellant to file a concise statement of 

errors complained of on appeal under Pa.R.A.P. 1925(b), and Appellant did 

not file one. The trial court filed a Pa.R.A.P. 1925(a) opinion. 

On appeal, Appellant raises the following question:

Did the trial court abuse its discretion when it sentenced 

[Appellant] to an aggregate sentence of 31⁄2 to 7 years[’] 

incarceration, during which proceeding the sentencing court did 

not follow the dictates of 42 Pa.C.S. § 9721(b), which requires the 

court to at least consider the particular circumstances of the 

offense and the character of the defendant?

Appellant’s Brief at 4.

According to Appellant, “the record is silent as to whether the court fully 

considered the factors under 42 Pa.C.S. § 9721(b).” Id. at 9. Appellant 

argues that since the trial court “failed to adequately state reasons on the 

record on how the imposed sentence would serve the purposes defined in 42 

Pa.C.S. § 9721(b), the sentencing court’s imposition of a manifestly 

unreasonable sentence was an abuse of discretion.” Id. at 7. 

Appellant’s issue implicates the discretionary aspects of sentencing. 

[C]hallenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant challenging 
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the discretionary aspects of his sentence must invoke this Court’s 

jurisdiction by satisfying a four-part test:

[W]e 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.A. § 9781(b).

Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citations 

omitted). 

As to the requirement that a substantial question be raised, this Court 

has explained that a substantial question “exists only when an 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 underlying the sentencing process.” Commonwealth 

v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016) (citation 

omitted). 

Here, Appellant’s appeal was timely, he preserved his issue in a motion 

for reconsideration of sentence, and his brief contains a concise statement of 

the reasons relied upon for allowance of appeal. Additionally, Appellant raises 

a substantial question, since we have previously held that an appellant 

“raise[s] a substantial question for our review by asserting that the trial court 

failed to state adequate reasons on the record for [the a]ppellant’s sentence.” 

Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super. 2016) (citation 

omitted).
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We note that 

the requirement that a trial court explain its sentence [arises] 

under Section 9721 and corresponding Criminal Rule 708 [and] 

has two components. First, the court must state its reasons on 

the record at the time the sentence is imposed.

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Second, although [a] sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence, . . . the 

record as a whole must reflect the sentencing court’s 

consideration of the facts of the crime and character of the 

offender.

Id. at 875-76 (internal quotation marks and citations omitted). 

In the instant matter, it is undisputed that the trial court did not include 

its reasons on the record for the sentence it imposed. The trial court indicated 

in its opinion pursuant to Pa.R.A.P. 1925(a) that “it committed reversible error 

when it failed to state its reasons for the sentence imposed on the record[.]” 

Trial Ct. Op., 5/29/18, at 3. We agree with the trial court and remand this 

matter for resentencing. See Flowers, 149 A.3d at 877.

Judgment of sentence vacated. Case remanded for re-sentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/18