J-S17008-16

_____________________________

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellee

v.

LE-JIARON ELMORE

Appellant No. 461 WDA 2015

Appeal from the Judgment of Sentence February 4, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0006566-2014

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 18, 2016

Appellant, Le-Jiaron Elmore, appeals from the judgment of sentence 

entered in the Allegheny County Court of Common Pleas, following his guilty 

plea to aggravated assault and endangering the welfare of children 

(“EWOC”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

On or around June 20, 2014, the Commonwealth filed a criminal information 

charging Appellant with one count each of aggravated assault, EWOC, simple 

assault of a child, and recklessly endangering another person, in connection 

with an incident involving Appellant’s four-month-old daughter (“Victim”) 

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(1); 4304(a)(1), respectively. 
J-S17008-16

- 2 -

that occurred on April 22, 2014. On November 12, 2014, Appellant pled 

guilty to aggravated assault and EWOC in exchange for the Commonwealth’s 

agreement to withdraw the remaining charges. The plea was open as to 

sentencing. 

At Appellant’s guilty plea hearing, the Commonwealth summarized the 

factual basis for the plea as follows:

Had the case proceeded to trial...the Commonwealth would 

have called Detective Sellers and Detective Campbell and 

also Children’s Hospital’s Drs. Rachel Berger and Jennifer 

Wolford along with Zone 1 uniformed officers and 

[V]ictim’s mother, ...and [V]ictim’s grandmother who would 

have testified that on or about April 22, 2014, 

[V]ictim...was taken first to Allegheny General Hospital by 

her mother for an arm injury. X-rays were taken of this 

four-month-old twin female’s arms and revealed that she 

had a right forearm with a spiral fracture. The x-rays 

further showed three right fractured ribs that were in 

different stages of healing. The four-month-old was 

transferred to Children’s Hospital where additional x-rays 

and skeletal surveys revealed an additional broken rib to 

the left side and corner fractures to both femurs.

All parties were interviewed and police learned that 

[V]ictim’s mother had left her four-month-old twins with 

their father, later identified as [Appellant], for a short time 

while she left their home in Pittsburgh. Upon returning[, 

Victim] was crying, a cry that her mother never heard 

before. [Victim’s mother] said [Appellant] was the only 

caregiver. She asked him about the four-month-old. He 

became highly upset and said he didn’t know why she was 

crying. The mother next noticed that the four-month-old 

had a dangling arm and sought medical care.

The doctors at Children’s Hospital would have testified as 

experts that the abuse happened on more than one 

occasion and that the abuse was caused, it was nonaccidental. With that, the Commonwealth would have 

rested.
J-S17008-16

- 3 -

(N.T. Guilty Plea Hearing, 11/12/14, at 4-6). The court asked defense 

counsel if Appellant had any additions or corrections to the Commonwealth’s 

recitation of the facts, to which counsel responded: “None, Your Honor.” 

(Id. at 6). After the court conducted a guilty plea colloquy, it accepted 

Appellant’s plea as knowing, intelligent, and voluntary. The court noted for 

the record the relevant offense gravity score (“OGS”) and Appellant’s prior 

record score (“PRS”). The Commonwealth further indicated Victim’s mother 

and Victim’s grandmother were present in court, and Victim’s mother had 

written a letter which she asked the Commonwealth to read into the record. 

The Commonwealth read the victim impact statement into the record at that 

time. The court deferred sentencing pending a presentence investigation 

(“PSI”) report. 

On February 4, 2015, Appellant proceeded to sentencing. The court 

initially noted it had read and considered the PSI report. The court also 

reiterated the OGS for the aggravated assault conviction and Appellant’s 

PRS. Defense counsel emphasized Appellant took responsibility for his 

actions by pleading guilty. Defense counsel also mentioned Appellant’s 

mental health issues. Based on Appellant’s PRS of zero and his acceptance 

of responsibility, defense counsel requested a mitigated range sentence. 

When the court asked Appellant if he wanted to say anything, Appellant 

stated: “Just, I’m sorry.” (N.T. Sentencing Hearing, 2/4/15, at 3). The 

Commonwealth explained Victim’s mother and Victim’s grandmother were 
J-S17008-16

- 4 -

once again present in court. The Commonwealth reminded the court about 

Victim’s mother’s impact statement. The Commonwealth also discussed 

Victim’s injuries. The Commonwealth further added Appellant had been 

investigated for a strikingly similar incident in 2004 involving injuries to a 

five-month-old child; the case was closed due, in part, to that mother’s lack 

of cooperation and Appellant’s lack of cooperation. The Commonwealth 

sought a high standard range or aggravated range sentence.

At the conclusion of the hearing, the court sentenced Appellant to 

seven (7) to twenty (20) years’ imprisonment for aggravated assault. The 

court imposed no further penalty for Appellant’s EWOC conviction. In 

fashioning Appellant’s sentence, the court explained:

Okay. [Appellant], I really can’t consider the prior 

investigation since it did not lead to any kind of conviction. 

So we don’t know what there is to know about this.

However, I am concerned, because this was a four-monthold child. A four-month-old child, as you probably know, 

can’t even sit up, let alone defend [herself] or talk. 

Now, she had a fracture to her forearm, three fractured 

ribs, which happened on a prior occasion, which leads me 

to conclude that it wasn’t that you were angry one time 

and just took off on her. She had another broken rib, and 

she had two corner fractures to both of her femurs. This 

shows a long term pattern of abuse by you. 

I certainly feel that you are a danger to any child in our 

community. I don’t see that you’re amenable to 

rehabilitation. 

* * *

I’m going to make a recommendation that he be 
J-S17008-16

- 5 -

considered for placement at Waymart, which is a mental 

health state correctional institution. 

(Id. at 4-5).

Appellant timely filed post-sentence motions on February 10, 2015, 

which the court denied on February 13, 2015. Appellant timely filed a notice 

of appeal on March 13, 2015. On March 25, 2015, the court ordered 

Appellant to file by May 22, 2015, a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his 

concise statement on May 21, 2015. 

Appellant raises one issue for our review:

DID THE TRIAL COURT FAIL TO ADEQUATELY CONSIDER 

AND APPLY ALL OF THE RELEVANT SENTENCING 

CRITERIA, INCLUDING [APPELLANT’S] CHARACTER AND 

REHABILITATIVE NEEDS, THE GRAVITY OF THE OFFENSE 

AND THE PROTECTION OF THE PUBLIC, AS REQUIRED 

UNDER 42 PA.C.S.A. § 9721(B) (SENTENCING 

GENERALLY; GENERAL STANDARDS) AND 42 PA.C.S.A. § 

9725 (TOTAL CONFINEMENT); AND DID IT IMPROPERLY 

CONSIDER A PRIOR INVESTIGATION INTO A SEPARATE 

MATTER? 

(Appellant’s Brief at 4). 

Appellant argues the court imposed an excessive sentence due 

primarily to the nature of Appellant’s crime. Appellant asserts his sentence 

of seven to twenty years’ imprisonment for aggravated assault was 

significantly above the sentencing guidelines. Appellant contends the court 

failed to discuss the applicable sentencing guidelines at the guilty plea or 

sentencing hearings. Appellant claims the court impermissibly “double 
J-S17008-16

- 6 -

counted” the seriousness of Appellant’s offense when it deviated from the 

sentencing guidelines, because his offense gravity score already accounted 

for the seriousness of Appellant’s crime. Appellant avers the court failed to 

consider the relevant sentencing factors under 42 Pa.C.S.A. § 9721(b). 

Appellant complains the court also ignored the criteria necessary for 

imposing a sentence of total confinement set forth at 42 Pa.C.S.A. § 9725. 

Appellant suggests the court discounted mitigating factors such as 

Appellant’s age, his lack of a prior adult record, and the facts that Appellant 

suffered from mental health and addiction problems, consistently remained 

employed, took responsibility for his crimes by pleading guilty, and showed 

remorse. Appellant objects to the court’s failure to reference the specific 

content of the PSI report at the sentencing hearing. Appellant maintains the 

court considered an unsubstantiated allegation from 2004 involving 

Appellant’s conduct with a different child in determining Appellant’s 

sentence. Absent reliance on this unsubstantiated allegation, Appellant 

insists the record lacks support for the court’s statement that Appellant was 

not amenable to rehabilitation and a danger to children. Appellant concludes 

the court abused its sentencing discretion, and this Court must remand for 

resentencing. As presented, Appellant’s claims implicate the discretionary 

aspects of sentencing. See, e.g., Commonwealth v. Cartrette, 83 A.3d 

1031 (Pa.Super. 2013) (en banc) (explaining claim sentencing court failed to 

consider Section 9721(b) factors pertains to discretionary sentencing 
J-S17008-16

- 7 -

matters); Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013), 

appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention court 

focused solely on serious nature of crime without adequately considering 

protection of public and defendant’s rehabilitative needs concerns court’s 

sentencing discretion); Commonwealth v. McAfee, 849 A.2d 270 

(Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) 

(explaining claim court considered improper factor upon sentencing 

challenges discretionary aspects of sentencing); Commonwealth v. CruzCenteno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 

A.2d 1195 (1996) (stating allegation court overemphasized seriousness of 

crime without considering mitigating factors challenges discretionary aspects 

of sentencing). 

A challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979 

(2001). Prior to reaching the merits of a discretionary sentencing issue:

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.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 
J-S17008-16

- 8 -

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

Objections to the discretionary aspects of a sentence are waived if they are 

not raised at the sentencing hearing or in a timely filed post-sentence 

motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal 

denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot be cured by 

submitting the challenge in a Rule 1925(b) statement.” McAfee, supra at 

275. 

What constitutes a substantial question must be evaluated on a caseby-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007). 

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 (2) contrary to the 

fundamental norms which underlie the sentencing process.” 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal 

citation omitted). In other words, an appellant’s Rule 2119(f) statement 

must sufficiently articulate the manner in which the sentence violates either 

a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). 

On appeal, this Court will not disturb the judgment of the sentencing 

court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d 

843 (Pa.Super. 2006). 
J-S17008-16

- 9 -

[A]n abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not have abused 

its discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will. In more expansive 

terms, ...: An abuse of discretion may not be found merely 

because an appellate court might have reached a different 

conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, 

or such lack of support so as to be clearly erroneous. 

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate review is 

that the sentencing court is in the best position to 

determine the proper penalty for a particular offense based 

upon an evaluation of the individual circumstances before 

it. Simply stated, the sentencing court sentences fleshand-blood defendants and the nuances of sentencing 

decisions are difficult to gauge from the cold transcript 

used upon appellate review. Moreover, the sentencing 

court enjoys an institutional advantage to appellate review, 

bringing to its decisions an expertise, experience, and 

judgment that should not be lightly disturbed. Even with 

the advent of the sentencing guidelines, the power of 

sentencing is a function to be performed by the sentencing 

court. Thus, rather than cabin the exercise of a sentencing 

court’s discretion, the guidelines merely inform the 

sentencing decision. 

* * *

[W]e reaffirm that the guidelines have no binding effect, 

create no presumption in sentencing, and do not 

predominate over other sentencing factors—they are 

advisory guideposts that are valuable, may provide an 

essential starting point, and that must be respected and 

considered; they recommend, however, rather than 

require a particular sentence. ... 

Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65 

(2007) (internal quotation marks, footnotes, and citations omitted). 
J-S17008-16

- 10 -

Furthermore, in exercising its discretion, the sentencing

court may deviate from the guidelines, if necessary, to 

fashion a sentence that takes into account the protection 

of the public, the rehabilitative needs of the defendant, 

and the gravity of the particular offense as it relates to the 

impact on the life of the victim and the community, so long 

as the court also states of record the factual basis and 

specific reasons which compelled the deviation from the 

guidelines. This Court must remand for resentencing with 

instructions if we find that the sentencing court sentenced 

outside the guidelines and the sentence was unreasonable.

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001), appeal 

denied, 568 Pa. 695, 796 A.2d 979 (2002) (internal citations omitted). 

Pursuant to Section 9721(b), “the court shall follow the general 

principle that the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

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

42 Pa.C.S.A. § 9725 (stating court shall impose sentence of total 

confinement if, having regard to nature and circumstances of crime and 

history, character, and condition of defendant, it is of opinion that total 

confinement is necessary because: (1) there is undue risk defendant will 

commit another crime during period of probation or partial confinement; (2) 

defendant needs correctional treatment that can be provided most 

effectively by commitment to institution; or (3) lesser sentence will 

depreciate seriousness of crime). 
J-S17008-16

- 11 -

“[T]he court shall make as part of the record, and disclose in open 

court at the time of sentencing, a statement of the reason or reasons for the 

sentence imposed.” 42 Pa.C.S.A. § 9721(b). Nevertheless, “[a] sentencing 

court need not undertake a lengthy discourse for its reasons for imposing a 

sentence or specifically reference the statute[s] in question....” 

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal 

denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record as a whole 

must reflect the sentencing court’s consideration of the facts of the case and 

the defendant’s character. Id. See also Commonwealth v. Fowler, 893 

A.2d 758 (Pa.Super. 2006) (explaining where sentencing court had benefit 

of PSI report, we can presume it was aware of relevant information 

regarding defendant’s character and weighed those considerations along 

with mitigating factors); Cruz-Centeno, supra at 546 (stating: “Having 

been fully informed by the pre-sentence report, the sentencing court’s 

discretion should not be disturbed”).

Instantly, Appellant raised the following issue in his Rule 1925(b) 

statement:

The trial court abused its discretion in sentencing 

[Appellant] to seven to 20 years of incarceration at CC# 

2014-06566. This sentence was manifestly unjust, 

unreasonable and excessive. The trial court failed to 

adequately consider and apply all of the relevant 

sentencing criteria, including the protection of the public, 

the gravity of the offense, and [Appellant’s] rehabilitative 

needs, as required under 42 Pa.C.S.A. § 9721 (Sentencing 

Generally) and 42 Pa.C.S.A. § 9725 (Total Confinement). 

Specifically, the court did not adequately consider that 
J-S17008-16

- 12 -

[Appellant] had a prior record score of zero, took 

responsibility for his crimes, and has severe mental-health 

issues. Moreover, the trial court improperly considered a 

prior investigation into an unrelated matter in determining 

that [Appellant] is not amenable to rehabilitation.

(Appellant’s Rule 1925(b) Statement, filed May 21, 2015, at 2). 

Significantly, Appellant did not include in his Rule 1925(b) statement his 

claims on appeal that the court focused solely on and “double counted” the 

seriousness of Appellant’s offense, failed to discuss the sentencing guidelines 

at the guilty plea or sentencing hearings, did not reference the specific 

content of the PSI report at sentencing, and ignored the mitigating factors of 

Appellant’s age, addiction problems, consistent employment, and display of 

remorse. Thus, these claims are waived. See Commonwealth v. 

Schutzues, 54 A.3d 86 (Pa.Super. 2012), appeal denied, 620 Pa. 699, 67 

A.3d 796 (2013) (holding defendant waived challenge to discretionary 

aspects of sentencing where he failed to preserve claim in Rule 1925(b) 

statement). 

Appellant also failed to preserve these complaints in his post-sentence 

motion, constituting waiver of these claims on this basis as well. See 

(Appellant’s Post-Sentence Motion, filed February 10, 2015, at 1-4); Griffin, 

supra. Additionally, Appellant’s post-sentence motion omits the claims 

raised for the first time in his Rule 1925(b) statement that the court ignored 

the sentencing criteria set forth at 42 Pa.C.S.A. § 9725, and considered a 

prior investigation involving Appellant to determine he was not amenable to 
J-S17008-16

- 13 -

rehabilitation.2 Consequently, these averments are likewise waived.3 See 

(Appellant’s Post-Sentence Motion at 1-4); Griffin, supra; McAfee, supra. 

Appellant’s remaining averments, preserved in his post-sentence 

motion and Rule 1925(b) statement, that the court did not adequately 

consider and apply the Section 9721(b) sentencing factors, and imposed a 

manifestly excessive above-the-guideline sentence, without consideration of 

Appellant’s mental health and rehabilitative needs, lack of a prior record, 

and acceptance of responsibility, present substantial questions for review. 

See Cartrette, supra (indicating claim court ignored appropriate sentencing 

factors under Section 9721(b) raises substantial question); Commonwealth 

v. Raven, 97 A.3d 1244 (Pa.Super. 2014), appeal denied, 105 A.3d 736 

(2014) (explaining excessive sentence claim, raised in conjunction with 

assertion court failed to consider mitigating factors, raises substantial 

question). 

In analyzing Appellant’s preserved challenge to the court’s sentencing 

____________________________________________

2 Moreover, the record belies this claim where the trial court expressly stated 

at sentencing and in its Rule 1925(a) opinion that it did not consider the 

Commonwealth’s statements regarding a prior investigation involving 

Appellant. (See N.T. Sentencing Hearing at 4; Trial Court Opinion, filed July 

21, 2015, at 3.) 

3 To the extent Appellant complains the court incorrectly stated the 

maximum sentence for aggravated assault at the guilty plea hearing, 

Appellant raises that claim for the first time on appeal, so it is waived. See 

Pa.R.A.P. 302(a) (stating issues not raised before trial court are waived and 

cannot be raised for first time on appeal). Notably, Appellant did not seek to 

withdraw his guilty plea based on the alleged miscommunication. 
J-S17008-16

- 14 -

discretion, the trial court reasoned:

At the sentencing hearing, this [c]ourt noted that it had 

read and considered a Pre-Sentence Investigation report. 

It then placed its reasons for imposing sentence on the 

record:

THE COURT: Okay. [Appellant], I really can’t 

consider the prior investigation since it did not lead 

to any kind of conviction. So we don’t know what 

there is to know about this.

However, I am concerned, because this was a fourmonth-old child. A four-month-old child, as you 

probably know, can’t even sit up, let alone defend 

[herself] or talk.

Now, she had a fracture to her forearm, three 

fractured ribs, which happened on a prior occasion, 

which leads me to conclude that it wasn’t that you 

were angry one time and just took off on her. She 

had another broken rib, and she had two corner 

fractures to both of her femurs. This shows a long 

term pattern of abuse by you. I certainly feel that 

you are a danger to any child in our community. I 

don’t see that you’re amendable to rehabilitation.

[(N.T. Sentencing Hearing at 4)]. 

As the record reflects, this [c]ourt appropriately read and 

considered the pre-sentence investigation report, 

considered the factors and severity of the present offense, 

evaluated [Appellant’s] potential for rehabilitation and 

imposed a sentence which took all of these factors into 

consideration. Contrary to [Appellant’s] assertion, the 

record specifically notes that this [c]ourt did not consider a 

prior child abuse investigation referenced by the 

Commonwealth. Moreover, the record reflects great 

deliberation and consideration in the formulation of the 

sentence. ... Given the facts of this case, the sentence 

imposed was appropriate, not excessive and well within 

this [c]ourt’s discretion. This claim must fail. 

(Trial Court Opinion at 3-4). We see no reason to disrupt the court’s broad 
J-S17008-16

- 15 -

sentencing discretion. See Walls, supra; Crump, supra; Fullin, supra; 

Kenner, supra. 

The record makes clear the court heard the Commonwealth’s recitation 

of the facts at the guilty plea hearing, which Appellant did not dispute. The 

court also listened to Victim’s mother’s impact statement. The court 

evaluated the arguments of counsel at sentencing, including but not limited 

to, defense counsel’s request for a mitigated range sentence based on 

Appellant’s PRS of zero and his acceptance of responsibility. Additionally, 

the court had the benefit of a PSI report, so we can presume the court was 

aware of relevant information regarding Appellant’s character and weighed 

those considerations along with mitigating factors. See Fowler, supra; 

Cruz-Centeno, supra. The PSI report contained a description of 

Appellant’s offenses, victim impact statements, Appellant’s age, criminal 

history, employment history, family history, marital history, education, and 

physical and mental health information. The court also recommended 

placement for Appellant at a mental health state correction institution, 

confirming the court gave thought to Appellant’s mental health issues. 

Under these circumstances, we cannot say the sentence imposed was 

“unreasonable.” See Kenner, supra. Therefore, Appellant’s sentencing 

challenge merits no relief. See Walls, supra; Fullin, supra; Kenner, 

supra. Accordingly, we affirm.

Judgment of sentence affirmed. 
J-S17008-16

- 16 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2016