J-S07021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRUCE WILLIAMS, JR.

Appellant No. 1036 MDA 2015

Appeal from the Judgment of Sentence December 19, 2013

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0000390-2012

BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED MARCH 23, 2016

Bruce Williams, Jr., appeals, nunc pro tunc, from the judgment of 

sentence entered December 19, 2013, in the York County Court of Common 

Pleas. Williams was sentenced to an aggregate term of 20 to 46 years’ 

imprisonment after a jury found him guilty of third degree murder and 

carrying a firearm without a license1in the shooting death of Jesse 

Heverling. On appeal, Williams challenges the discretionary aspects of his 

sentence, the trial court’s denial of his motion for reconsideration of 

sentence, and the weight of the evidence supporting his convictions. For the 

reasons that follow, we affirm. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2502(c) and 6106(a)(1), respectively.
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The trial court provided a detailed summary of the facts underlying 

Williams’ conviction in its Pa.R.A.P. 1925(a) opinion. See Trial Court 

Opinion, 7/17/2015, at 4-11. Suffice it to say that, on the evening of 

November 10, 2011, Williams shot Heverling following an altercation at a 

crack house on South Belvidere Street in York. The two eyewitnesses to the 

shooting both admitted to having consumed drugs or alcohol on the night in 

question, and initially provided false names to police.2 Williams was 

subsequently arrested and filed a motion for decertification because he was 

17 years old on the date of the crime. Following a hearing, his motion was 

denied. Williams was then charged, as an adult, with murder of the first, 

second and third degree, robbery, and carrying a firearm without a license.3

On March 7, 2013, Williams filed an omnibus pretrial motion, which the 

trial court denied following a hearing. In July of 2013, Williams filed a pro se

petition writ of habeas corpus, and sought to remove counsel. Both requests 

were denied on August 2, 2013, following a hearing.

Williams’ jury trial commenced on August 12, 2013. On August 15, 

2013, the jury returned a verdict of guilty on the charges of third-degree 

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2 A third witness, Elwood Gladfelter, testified that when Williams was his 

cellmate, Williams admitted he committed the crime. However, Gladfelter 

acknowledged that he was released early from prison in exchange for his 

testimony.

3 See 18 Pa.C.S. §§ 2502(a)-(c), 3701(a)(1), and 6106(a)(1), respectively.
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murder and carrying a firearm without a license. The jury found Williams 

not guilty of first and second-degree murder, and robbery. Williams was 

sentenced on December 19, 2013, to a term of 17 to 40 years’ imprisonment 

for third-degree murder, and a consecutive term of three to six years’ 

imprisonment for the firearms charge. 

On December 30, 2013, Williams filed a post-sentence motion seeking

(1) reconsideration of his sentence pursuant to the dictates of Miller v. 

Alabama, 132 S.Ct. 2455 (U.S. 2012),4and (2) modification of his 

sentence, based upon the trial court’s failure to consider the specific facts 

underlying his prior convictions. On April 14, 2014, the trial court conducted 

a hearing on Williams’ post-sentence motion. While the court granted

reconsideration of his sentence, it denied his request for modification. 

Thereafter, Williams filed a direct appeal on May 15, 2014. 

On July 24, 2014, this Court quashed Williams’ appeal because it was 

untimely filed. Williams filed a pro se PCRA5 petition on March 31, 2015, 

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4 Specifically, Williams asserted that “in sentencing [him] to nearly the 

maximum sentence allowed by law, [the trial court] failed to take into 

consideration [his] age and the scientific findings made by the US Supreme 

court in Miller v. Alabama.” Motion for Reconsideration of Sentence, 

12/30/2013, at 1. In Miller, supra, the Supreme Court held “the Eighth 

Amendment forbids a sentencing scheme that mandates life in prison 

without possibility of parole for juvenile offenders” and required a judge or 

jury to “consider mitigating circumstances before imposing the harshest 

possible penalty for juveniles.” Miller, supra, 132 S. Ct. at 2469, 2475. 

5

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
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asserting the ineffectiveness of trial counsel for failing to file a timely direct 

appeal. Counsel was appointed, and the Commonwealth agreed that 

Williams’ appeal rights should be reinstated. On May 26, 2015, the trial 

court entered an order reinstating Williams’ direct appeal, and instructing 

him to file a notice of appeal within 30 days. Williams complied with the 

court’s directive, and this nunc pro tunc appeal followed.6

In his first issue on appeal, Williams challenges the discretionary 

aspects of his sentence. 

“A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. 

Super. 2007) (citation omitted). In order to reach the merits of such a 

claim, this Court must determine: 

(1) whether the appeal is timely; (2) whether Appellant 

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

concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of sentence; and 

(4) whether the concise statement raises a substantial question 

that the sentence is appropriate under the sentencing code. 

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013) 

(quotation omitted), appeal denied, 81 A.3d 75 (Pa. 2013). 

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6 On June 19, 2015, the trial court ordered Williams to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Williams complied with the court’s directive and filed a concise statement on 

July 7, 2015.
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In the present case, although Williams filed a timely appeal, and 

preserved his objection to his sentence in a post-sentence motion, he failed 

to include in his brief a concise statement of the reasons relied upon for 

allowance of appeal pursuant to Pa.R.A.P. 2119(f). This Court has 

explained:

[W]hen the appellant has not included a Rule 2119(f) statement 

and the [Commonwealth] has not objected, this Court may 

ignore the omission and determine if there is a substantial 

question that the sentence imposed was not appropriate, or 

enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., 

deny allowance of appeal. However, this option is lost if the 

[Commonwealth] objects to a 2119(f) omission. In such 

circumstances, this Court is precluded from reviewing the merits 

of the claim and the appeal must be denied.

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (internal 

citations omitted). 

As noted above, Williams failed to include the requisite Rule 2119(f) 

statement in his brief. Moreover, the Commonwealth has objected to this 

omission. See Commonwealth’s Brief at 8-10. Accordingly, we are 

precluded from considering this claim on appeal.

7

 Kiesel, supra.

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7 We note that even if Williams had preserved his sentencing claim, we 

would find he is entitled to no relief. His primary argument appears to be 

the trial court failed to consider Williams’ age and maturity when it imposed 

a “nearly maximum sentence.” Williams’ Brief at 12. Williams asserts that, 

although the court considered his criminal history, it failed to take into 

consideration the facts of the prior charges. Id. at 13. 

“A substantial question exists where an appellant ‘advances a colorable 

argument that the trial court’s actions were inconsistent with a specific 

provision of the sentencing code, or contrary to the fundamental norms 

(Footnote Continued Next Page)
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Next, in a related claim, Williams argues the trial court abused its 

discretion when it denied his motion for reconsideration of sentence. This 

claim appears to focus on the testimony presented during the April 14, 2014,

hearing on Williams’ post-sentence motion. Williams contends the court 

failed to “take into consideration all of the mitigating factors and the 

evidence presented by [him].” Williams’ Brief at 15.

We are unable to discern how this issue differs from the first. Again, 

Williams challenges the discretionary aspects of his sentence. However, as 

explained supra, he failed to preserve this claim for our review by including 

(Footnote Continued) _______________________

underlying the sentencing process.’” Commonwealth v. Provenzano, 50 

A.3d 148, 154 (Pa. Super. 2012) (citation omitted). A claim that the trial 

court “refused to weigh the proposed mitigating factors as [the defendant] 

wished, absent more, does not raise a substantial question.” 

Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010). 

Furthermore, where, as here, the trial court had the benefit of a presentence 

investigation report, we will presume it was “aware of all appropriate 

sentencing factors and considerations.” Commonwealth v. Downing, 990 

A.2d 788, 794 (Pa. Super. 2010) (citation omitted).

In the present case, the trial court explained that while it considered 

Williams’ age at the time of the offense, and the testimony of the character 

witnesses he presented, it also took note of Williams’ “rather extensive 

criminal history,” and the “steady increase in the severity of his crimes 

coupled with his years spent in the juvenile system with no apparent change 

of behavior[.]” Trial Court Opinion, 7/17/2015, at 13, 14. Upon our review 

of Williams’ argument, the trial court’s opinion, and the transcript from the 

sentencing hearing, we would conclude Williams has failed to raise a 

substantial question for our review.

 
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the requisite Pa.R.A.P. 2119(f) statement in his brief. Accordingly, this 

claim, too, is waived for our review.8

In his third issue, Williams claims the verdict is against the weight of 

the evidence. Specifically, he asserts the Commonwealth presented no 

physical evidence connecting him to the crime, and the eyewitnesses for the 

prosecution admitted to being under the influence of drugs or alcohol, lying 

to police, and providing inconsistent statements regarding the events on the 

night in question. See Williams’ Brief at 16-17. He claims “these 

inconsistencies and discrepancies render the testimony of the witnesses 

incredible to the point that the jury’s ultimate verdict shocks one’s sense of 

justice.” Id. at 17. 

It is well-settled that when reviewing a weight of the evidence claim,

an appellate court does not substitute its judgment for the finder 

of fact and consider the underlying question of whether the 

verdict is against the weight of the evidence, but, rather, 

determines only whether the trial court abused its discretion in 

making its determination. 

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 

134 S. Ct. 1792 (U.S. 2014). For that reason, “[a] weight of the evidence 

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8 We note that contrary to Williams’ characterization, the trial court did 

grant his motion to reconsider his sentence, although the court ultimately 

declined to modify his sentence. See N.T., 4/14/2014, at 24. Indeed, 

after Williams filed his post-sentence motion, the trial conducted a hearing, 

and permitted Williams to present another witness. However, the court 

concluded the sentence it originally imposed was appropriate. See id. at 

21-24. 
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claim must be preserved either in a post-sentence motion, by a written 

motion before sentencing, or orally prior to sentencing. Commonwealth v. 

Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601 

(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.

Here, Williams neglected to challenge the weight of the evidence in his 

post-sentence motion, or during the subsequent hearing. Nor did he raise a 

challenge either prior to or during his sentencing hearing. See generally

N.T., 9/13/2013. Therefore, this claim is waived for our review. Further, we 

note the fact that the trial court addressed this claim is of no moment; 

“[f]ailure to properly preserve the claim will result in waiver, even if the trial 

court addresses the issue in its opinion.” Commonwealth v. Thompson, 

93 A.3d 478, 490 (Pa. Super. 2014), quoting Lofton, supra, 57 A.3d at 

1273 (citation omitted).9

Because we conclude Williams has failed to preserve any issues for our 

review, we affirm the judgment of sentence.

Judgment of sentence affirmed. 

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9 See Thompson, supra, 93 A.3d at 490-491 (explaining that trial court 

never “ruled” on the issue when it addressed weight claim in its opinion; at 

that time, court was divested of jurisdiction and could not take further 

action). 

At this juncture, Williams’ only avenue for relief is a timely filed PCRA 

petition challenging trial counsel’s ineffectiveness.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2016