Com. v. Samad, M.

C
J-S06020-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MUHAMMAD SAMAD                             :
                                               :
                       Appellant               :   No. 1458 EDA 2020

          Appeal from the Judgment of Sentence Entered June 26, 2020
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0005802-2018


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 12, 2021

        Appellant Muhammad Samad appeals from the amended judgment of

sentence1 imposed after he pled guilty to three counts of possession with

intent to deliver (PWID),2 one count of endangering the welfare of a child, and

one count of carrying a firearm without a license.3 Appellant argues that his

sentence is illegal because (1) the separate sentences for PWID—fentanyl and

PWID—cocaine violated constitutional protections against double jeopardy and

(2) the sentences for PWID—fentanyl and PWID—cocaine should have

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 We have corrected the caption to reflect that the appeal properly lies from
the amended judgment of sentence.

2   Specifically, PWID—fentanyl, PWID—cocaine, and PWID—marijuana.

3 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 4304(a)(1), and 6106(a)(1),
respectively.
J-S06020-21



merged. Appellant also challenges the discretionary aspects of his sentence.

We affirm.

      We state the facts as set forth at Appellant’s guilty plea hearing:

      [O]n August 17, 2018, members of the Cheltenham Police
      Department and Montgomery County Detective Bureau Narcotics
      Enforcement Team served a warrant on [Appellant’s] person,
      [Appellant’s] Mercedes Benz[,] and [Appellant’s] home in
      Cheltenham, Montgomery County, where [Appellant] live[s] with
      [his] wife and [his] two young daughters.

                                  *    *     *

      [Appellant was] stopped leaving the house in [his] Mercedes.
      When officers searched the car, they recovered a loaded Glock 26
      pistol with a magazine containing 16 rounds, as well as heroin and
      marijuana. [Appellant] did not have a valid license to carry the
      firearm. The Glock 26 was in [Appellant’s] possession, and
      [Appellant] intended to sell the heroin and marijuana in [his] car
      ...

                                  *    *     *

      Also, when the police went to search [Appellant’s] house, they
      found two kilograms of cocaine in [Appellant’s] bedroom,
      approximately eight pounds of marijuana, 830 packets of heroin
      in the basement, and over 38 grams of Fentanyl in the house.
      [Appellant] intended to sell these drugs; . . .

                                 *    *      *

      There were also five firearms or rifles found in the basement.
      There was a plate of cocaine with residue in the basement.

      And these items in the basement, as well as the drugs that were
      in [Appellant’s] unlocked bedroom, were accessible to
      [Appellant’s] daughters who were living in the home, and were six
      and two years old at the time; . . .

N.T., Plea Hr’g, 2/12/20, at 13-15.        Appellant admitted to these factual

allegations as part of his open guilty plea on February 12, 2020.

Id. The trial

-2-

J-S06020-21



court deferred sentencing for the preparation of a pre-sentence investigation

(PSI) report.

Id. at 19.

       On June 24, 2020, the trial court imposed concurrent terms of

incarceration of seven-and-a-half to fifteen years for PWID—fentanyl (count

one), five to ten years for PWID—cocaine (count two), one to three years for

PWID—marijuana (count three), and one to three years for endangering the

welfare of a child (count thirteen). The trial court also imposed a consecutive

term of five to ten years’ incarceration for carrying a firearm without a license

(count fifteen).     Appellant’s aggregate sentence was twelve-and-a-half to

twenty-five years’ incarceration. The trial court did not inform Appellant of

his post-sentence and appellate rights and failed to ascertain on the record if

counsel had informed Appellant of those rights.

       On June 26, 2020, the trial court entered an order sua sponte amending

the sentence because of an error in the original sentence and “to maintain the

original sentencing scheme . . . .” Order, 6/26/20.4 The trial court amended

the sentence for count two, i.e., five to ten years’ incarceration, to run

consecutively to count one, instead of concurrently.       Also, the trial court

reduced the sentence for count fifteen from five to ten years’ incarceration to

three-and-a-half to seven years and ran it concurrently to count one. The




____________________________________________


4 The order does not specify what this error is, but based on our review of the
record, the original sentence for count fifteen, a felony of the third degree
exceeded the lawful maximum.

                                           -3-
J-S06020-21



aggregate sentence remained the same. That order did not apprise Appellant

of his post-sentence or appellate rights.

      Eleven days later, on July 7, 2020 Appellant filed a motion for

reconsideration of sentence (post-sentence motion).           Therein, Appellant

argued that the trial court’s aggregate sentence was above the standard

guideline range and greater than necessary to rehabilitate Appellant and to

deter future wrongdoing. Appellant also claimed that the trial court abused

its discretion by imposing an aggregate sentence above the standard guideline

range when his prior record score was mostly based on an old juvenile

adjudication, and the trial court did not state reasons for imposing an

aggravated sentence. Further, Appellant requested an opportunity to present

additional mitigation evidence, namely character witnesses and evidence

about his learning disability, neither of which were available at sentencing.

The trial court denied Appellant’s post-sentence motion that same day. The

trial court’s order denying Appellant’s post-sentence motion informed

Appellant “[y]ou have the right to appeal this Order to the Superior Court

within thirty (30) days of the date of this Order.” Order, 7/7/20.

      Appellant filed a notice of appeal thirty-one days later on August 7,

2020. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court filed its 1925(a) opinion stating that Appellant’s appeal was untimely

filed, and also addressed Appellant’s claims on the merits.

      On August 21, 2020, this Court issued a rule to show cause why the

appeal should not be quashed as untimely filed. Appellant responded that his

                                     -4-
J-S06020-21



post-sentence motion was timely filed because it was mailed on July 6, 2020.

Resp. to Rule to Show Cause, 8/23/20, at ¶¶ 3-5. On October 15, 2020, this

Court issued a second rule to show cause why the appeal should not be

quashed as untimely filed. Appellant responded that he electronically filed his

notice of appeal on August 4, 2020, but the clerk of courts rejected it,

informing Appellant he could only submit the notice of appeal by mail and

must include the filing fee. Resp. to Rule to Show Cause, 10/23/20, at ¶¶ 5-

6; Ex. A; Ex. B. Appellant then mailed a physical copy of the notice of appeal

and the filing fee to the trial court on August 5, 2020, and the clerk date-

stamped it on August 7, 2020.

Id. at ¶ 7.

  Appellant contends that the

perfection of an appeal is not dependent on the payment of a filing fee, and

his appeal should be treated as timely filed on August 4, 2020, the date of his

original, rejected filing.

Id. at ¶¶ 10-11

(citing First Union Nat. Bank v.

F.A. Realty Inv. Corp., 

812 A.2d 719

, 722-23 (Pa. Super. 2002)). This Court

discharged the rules to show cause and deferred the issue to the present

panel. Order, 12/4/20.

      On appeal, Appellant raises three issues, which we reorder and

summarize as follows:

      1. Did the trial court violate the Double Jeopardy Clauses of the
         United States and Pennsylvania Constitutions by imposing
         separate sentences for PWID—fentanyl and PWID—cocaine?

      2. Are Appellant’s separate sentences for PWID—fentanyl and
         PWID—cocaine illegal because the charges should have merged
         for sentencing purposes?




                                     -5-
J-S06020-21


      3. Did the trial court abuse its discretion in imposing statutory
         maximum consecutive sentences for counts 1 and 2, by failing
         to account for the age of [Appellant’s] juvenile adjudications
         which formed the bulk of the prior record score, and by failing
         to give adequate weight to mitigating circumstances?

Appellant’s Brief at 3 (some formatting altered).

                            Timeliness of Appeal

      Before reaching the merits, we must first determine whether we have

jurisdiction over this appeal. See Commonwealth v. Horn, 

172 A.3d 1133

,

1135 (Pa. Super. 2017) (stating that appellate courts may consider the issue

of jurisdiction sua sponte). “Jurisdiction is vested in the Superior Court upon

the filing of a timely notice of appeal.” Commonwealth v. Green, 

862 A.2d

613

, 615 (Pa. Super. 2004) (en banc) (citation omitted). “In a criminal case

in which no post-sentence motion has been filed, the notice of appeal shall be

filed within 30 days of the imposition of the judgment of sentence in open

court.” Pa.R.A.P. 903(c)(3). When a trial court amends the sentence, the

appeal lies from the amended judgment of sentence. See Commonwealth

v. Garzone, 

993 A.2d 1245

, 1254 (Pa. Super. 2010).

      “[T]he time for filing an appeal can be extended beyond [thirty] days

after the imposition of sentence only if the defendant files a timely post-

sentence motion.” 

Green, 862 A.2d at 618

; see also Pa.R.Crim.P. 720(A)(2)

(stating a notice of appeal shall be filed within thirty days of the post-sentence

motion being denied or withdrawn).       Pa.R.Crim.P. 720(A)(1) requires that

post-sentence motions be filed within ten days of the imposition of sentence.




                                      -6-
J-S06020-21



It is well-established that untimely post-sentence motions do not toll the thirty

day appeal period. See 

Green, 862 A.2d at 618

.

       Generally, an appellate court cannot extend the time for filing an appeal.

See Commonwealth v. Patterson, 

940 A.2d 493

, 498 (Pa. Super. 2007).

“Nonetheless, this general rule does not affect the power of the courts to grant

relief in the case of fraud or breakdown in the processes of the court.”

Id.

“The courts of

this Commonwealth have held that a court breakdown occurred

in instances where the trial court . . . either failed to advise Appellant of his

post-sentence and appellate rights or misadvised him.”

Id. (citations

omitted).

Here,

the trial court did not notify Appellant of his post-sentence or

appellate rights, either on the record at sentencing or in the June 26, 2020

order amending the judgment of sentence that was mailed to Appellant.

Therefore, we conclude a breakdown in the operations of court occurred which

excuses the late filing of Appellant’s post-sentence motion. See 

Patterson,

940 A.2d at 498-500

. Moreover, we conclude despite being docketed on the

thirty-first day after the denial of his post-sentence motion, Appellant timely

filed his appeal.5 Therefore, we now proceed to consider Appellant’s claims.


____________________________________________


5 As noted above, Appellant electronically filed a notice of appeal on August 4,
2020, but the clerk of courts rejected it because Appellant had not paid the
filing fee. See Resp. to Rule to Show Cause, 10/23/20, at ¶¶ 5-6; Ex. A; Ex.
B. This Court has explained, “[a]n appeal filed within the allowed time period
without the requisite fee will still be considered valid.” First Union Nat.

Bank, 812 A.2d at 722-23

.

                                           -7-
J-S06020-21



                       Double Jeopardy and Merger

      Appellant argues that the separate sentences for counts one and two

(PWID—fentanyl and PWID—cocaine, respectively) are illegal for two reasons.

Appellant’s Brief at 15-19. First, Appellant asserts that because these two

offenses arose from the same incident, “the imposition of separate sentences

for each count violates the United States and Pennsylvania Constitution[]s[’]

prohibition[s] against double jeopardy.”

Id. at 16.

Second, Appellant claims

that that the trial court should have merged his sentences for counts one and

two under 42 Pa.C.S. § 9765.

Id. at 18-19.

      Appellant contends that because his PWID—fentanyl and PWID—cocaine

convictions arose from the same criminal episode and consist of the same

elements, counts one and two must be considered the same offense for double

jeopardy and merger purposes.

Id. at 15-19

. 

Specifically, Appellant argues

that his convictions “arose from the same criminal episode, namely, the search

of defendant’s vehicle and home on August 17, 2018.”

Id. at 18.

Appellant

also claims that the elements of counts one and two are identical because the

particular drug possessed or delivered is not an element of the offense of

PWID.

Id. at 15-19

(citing, inter alia, Commonwealth v. Ramsey, 

214 A.3d

274

, 278 (Pa. Super 2019)). Appellant further argues contends that Ramsey

overruled sub silentio our decision in Commonwealth v. Roberts, 

133 A.3d

759

(Pa. Super. 2016).

Id. at 16-17.

Therefore, Appellant concludes that the

trial court erred in relying on Roberts in its Rule 1925(a) opinion.

Id. at 16.

Lastly, Appellant claims that Commonwealth v. Swavely, 

554 A.2d 946

(Pa.

                                     -8-
J-S06020-21



Super. 1989), is not applicable to this case because the defendant in Swavely

was convicted of two counts of PWID, one for a Schedule II controlled

substance and the other for a Schedule IV controlled substance, while this

case involves fentanyl and cocaine, which are both Schedule II controlled

substances.

Id. at 17.

      The Commonwealth responds that Appellant’s separate sentences for

counts one and two do not violate the constitutional prohibitions against

double jeopardy because the charges at counts one and two are for different

drugs. Commonwealth’s Brief at 25-30 (citing 

Swavely, 554 A.2d at 949

,

951, 953). Likewise, the Commonwealth argues that counts one and two do

not merge because each count requires proof of an element not included in

the other, namely the particular drug possessed.

Id. at 36-37.

    The

Commonwealth further argues that counts one and two do not merge because

these counts “did not arise from a single criminal act and the statutory

elements of one are not included in the statutory elements of the other.”

Id.

at 31.

The Commonwealth asserts Appellant’s convictions arose from multiple

criminal acts because Appellant possessed multiple kinds of drugs, possessed

them in different locations inside his home and his car, and intended to make

multiple sales at different times.

Id. at 34

-35.
      The Commonwealth argues Ramsey is distinguishable from the facts of

this case because the defendant in Ramsey sold “a compound which could

not be separated into its component parts” and the defendant pleaded guilty

to one count of PWID and one count of delivery a controlled substance.

Id.

-9-

J-S06020-21



at 33-34, 36. According to the Commonwealth, the Ramsey Court applied

existing precedent that PWID was a lesser-included offense of delivery of a

controlled substance.

Id. at 34

(citing 

Ramsey, 214 A.3d at 279

).            The

Commonwealth further contends that Appellant’s interpretation of Ramsey is

incorrect, and that Ramsey, Roberts, and Swavely all “make it clear that

the particular drug delivered is, in fact, an element of the offense [of PWID].”

Id. at 36.

       Whether convictions merge for sentencing purposes involves the legality

of a sentence. See Commonwealth v. Baldwin, 

985 A.2d 830

, 833 (Pa.

2009). A double jeopardy claim also “implicates the legality of Appellant’s

sentence[.]”       Commonwealth v. Crissman, 

195 A.3d 588

, 590-91 (Pa.

Super. 2018).        Our Supreme Court has explained that “[t]he test for

sentencing merger is the same test utilized to decide whether more than one

offense      has    been    committed          in   the   double   jeopardy   context.”

Commonwealth v. Davidson, 

938 A.2d 198

, 218 (Pa. 2007) (citations

omitted).     Our standard of review is de novo and our scope of review is

plenary.6 See 

Baldwin, 985 A.2d at 833

; 

Crissman, 195 A.3d at 591

.

       Our Supreme Court has explained that Section 9765 of the Sentencing

Code “prohibits merger unless two distinct facts are present: 1) the crimes

arise from a single criminal act; and 2) all of the statutory elements of one of
____________________________________________


6 We note that Appellant raised his double jeopardy and merger claims for the
first time in his Rule 1925(b) statement. However, because these claims
implicate the legality of the sentence, they cannot be waived.           See
Commonwealth v. Olson, 

179 A.3d 1134

, 1137 (Pa. Super. 2018).

                                          - 10 -
J-S06020-21



the offenses are included in the statutory elements of the other.” 

Baldwin,

985 A.2d at 833

(citing 42 Pa.C.S. § 9765).         “Where crimes merge for

sentencing purposes, the court may sentence the defendant only on the higher

graded offense.” 42 Pa.C.S. § 9765.

      To determine whether there is a single criminal act, we must examine

the crimes as charged by the Commonwealth. Commonwealth v. Jenkins,

96 A.3d 1055

, 1060 (Pa. Super. 2014). If the offenses arise from a single

criminal act, a merger analysis must then consider whether “all of the

statutory elements of one of the offenses are included in the statutory

elements of the other.” 

Baldwin, 985 A.2d at 833

(citing 42 Pa.C.S. § 9765).

      Our Supreme Court has explained that

      we cannot ignore the simple legislative reality that individual
      criminal statutes often overlap, and proscribe in the alternative
      several different categories of conduct under a single banner.
      See, e.g., aggravated assault, 18 Pa.C.S. § 2702 (defining seven
      distinct violations of law); involuntary deviate sexual intercourse,
      18 Pa.C.S. § 3123 (setting forth eight separate violations).
      Consequently, in such cases, we caution that trial courts must
      take care to determine which particular “offenses,” i.e. violations
      of law, are at issue in a particular case.               See, e.g.,
      Commonwealth v. Johnson, 

874 A.2d 66

, 71 n.2 (Pa. Super.
      2005) (recognizing that a particular subsection of a criminal
      statute may merge with another crime as a lesser-included
      offense even though a different subsection of that same statute
      may not).

Id. at 837

n.6 (some formatting altered).

      The Controlled Substance, Drug, Device and Cosmetic Act defines PWID

as follows:



                                     - 11 -
J-S06020-21


      Except as authorized by this act, the manufacture, delivery, or
      possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30); see also Commonwealth v. Dix, 

207 A.3d 383

,

390 (Pa. Super. 2019) (stating the elements of PWID are that “the defendant

knowingly or intentionally possessed a controlled substance without being

properly registered to do so, with the intent to . . . deliver it.” (citations

omitted)), appeal denied, 

217 A.3d 790

(Pa. 2019).

      In Swavely, this Court examined whether separate sentences for two

counts of PWID, one for a Schedule II controlled substance and the other for

a Schedule IV controlled substance, violated constitutional protections against

double jeopardy and the merger doctrine. 

Swavely, 554 A.2d at 947

. The

offenses arose from a single sale of the two drugs packaged in a single plastic

vial.

Id. The Swavely Court

explained that because “[e]ach offense includes

an element distinctive of the other, i.e. the particular controlled substance. .

. . two separate offenses occurred, and sentencing on both offenses did not

violate the Double Jeopardy Clause. . . .”

Id. at 949.

This Court also found

that the two PWID sentences did not merge, explaining that

      the two separate offenses committed did not necessarily
      involve one another. Though contained in the same vial when
      transferred, neither offense required the existence of the other
      drug for its completion. Either offense could readily have been
      completed without the other. That [the defendant] chose to
      complete both crimes in one transfer does not render one crime
      necessarily included in the other.


                                     - 12 -
J-S06020-21

Id. at 952

(emphasis in original).

      In Roberts, the defendant was convicted of two counts of PWID, one

for powder cocaine and the other for crack cocaine. 

Roberts, 133 A.3d at

763

. The trial court imposed separate sentences for the two counts of PWID.

Id. at 767.

On appeal, defendant argued that the trial court imposed an illegal

sentence because the two PWID convictions should have merged for

sentencing purposes.

Id. at 773.

The Roberts Court discussed the elements

portion of Section 9765’s merger test in terms of greater and lesser included

offenses.

Id. (citing Commonwealth v.

Williams, 

958 A.2d 522

, 527 (Pa.

Super. 2008); 42 Pa.C.S. § 9765).       This Court affirmed the judgment of

sentence, concluding that the two PWID counts did not merge because neither

was a greater or lesser included offense of the other.

Id. at 773-74.

      More recently, in Ramsey, this Court examined whether separate

sentences for PWID and delivery of a controlled substance violated

constitutional protections against double jeopardy and whether the two counts

should merge for sentencing purposes. 

Ramsey, 214 A.3d at 276-79

. In

that case, the defendant sold “a compound mixture containing detectable

amounts of heroin and fentanyl[]” to an undercover police officer.

Id. at 276.

The Ramsey Court distinguished Swavely, and held that the separate

sentences for PWID and delivery of a controlled substance that stemmed from

a “single sale of a compound substance containing inseparable controlled

substances[]” violated the defendant’s protection against double jeopardy.

Id. at 278.

Lastly, this Court held that PWID and delivery of a controlled

                                     - 13 -
J-S06020-21



substance   merged     for   sentencing    purposes.

Id. at 279

  (citing

Commonwealth v. Eicher, 

605 A.2d 337

, 353 (Pa. Super. 1992);

Commonwealth v. Edwards, 

449 A.2d 38

, 39 (Pa. Super. 1982)).

      Here the trial court held that

      merger analysis is not appropriate when the offense charged in a
      case stem from different criminal acts. Commonwealth v.
      Healey, 

836 A.2d 156

, 158-15[9] (Pa. Super. 2003). In the
      context of possession with intent to deliver charges, the
      Pennsylvania Superior Court has found that the possession of
      different substances, do not constitute a greater and lesser
      included offenses to merge for sentencing purposes.
      Commonwealth v. Roberts, 

133 A.3d 759

, 773 (Pa. Super.
      2016).

      In this case, Appellant was convicted at Count 1 [] for the
      possession with intent to deliver—fentanyl and he was convicted
      at Count 2 for the possession with intent to deliver—cocaine.
      Therefore, C[]ounts 1 and 2 would not merge because fentanyl
      and cocaine are different drugs found in different locations in
      Appellant’s home. See, Affidavit of Probable Cause. Therefore,
      these convictions do not merge at sentencing and the sentence
      imposed is proper.

Trial Ct. Op., 9/23/20, at 15.

      We find no error in the trial court’s analysis. Specifically, we conclude

that Roberts is controlling and that the separate sentences for PWID—

fentanyl and PWID—cocaine do not merge for sentencing purposes and do not

violate the prohibition against double jeopardy.       As in Roberts, even

assuming that the instant offenses arose from the same criminal act, one

count is not a greater or lesser offense of the other. See 

Roberts, 133 A.3d

at 773-74

; see also 

Swavely, 554 A.2d at 949

-52. We also conclude that

Appellant’s reliance on Ramsey merits no relief. Ramsey involved a single

                                       - 14 -
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sale of a single compound and inseparable mixture of two controlled

substances, whereas this case involves two different controlled substances,

which were not mixed together. Compare 

Ramsey, 214 A.3d at 276

, 278

with N.T., Plea Hr’g, 2/12/20, at 13-14; and Trial Ct. Op. at 15. Given these

differences, the holding of Ramsey is not applicable to the facts of this case.7

See Commonwealth v. Kane, 

210 A.3d 324

, 332 (Pa. Super. 2019), appeal

denied, 

218 A.3d 856

(Pa. 2019) (reiterating “the holding of a judicial decision

is to be read against its facts” (citation and quotation marks omitted)).

       Therefore, Appellant is not entitled to relief on his double jeopardy and

merger claims. See 

Baldwin, 985 A.2d at 833

.

                      Discretionary Aspects of Sentencing

       Appellant also challenges the discretionary aspects of his sentence.

Appellant’s Brief at 12-14. Appellant argues that the trial court abused its

discretion by focusing solely on the seriousness of the offense and completely

ignored the substantial mitigation evidence presented at sentencing.

Id. at

13-14.

Appellant further contends that the trial court abused its discretion by

imposing consecutive sentences on count one and count two.

Id. Appellant

further notes

that his prior record score was five, and the bulk of his prior

____________________________________________


7 Additionally, even if Ramsey and Roberts were indistinguishable, we reject
Appellant’s contention that Ramsey implicitly overruled Roberts. It is well-
established that one three judge panel of this Court may not overrule a prior,
precedential decision another three judge panel. See Commonwealth v.
Beck, 

78 A.3d 656

, 659 (Pa. Super. 2013). A three-judge panel of this Court
decided Ramsey, therefore it could not have overruled the three judge panel
in Roberts. See

id.

- 15 -

J-S06020-21



record score resulted from a nineteen-year-old juvenile adjudication for

aggravated assault.8

Id. at 12.

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

an appellant to review as of right.” Commonwealth v. Derry, 

150 A.3d 987

,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

       (1) whether the appeal is timely; (2) whether [the a]ppellant
       preserved his issues; (3) whether [the a]ppellant’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 inappropriate under the [S]entencing [C]ode.

Commonwealth v. Corley, 

31 A.3d 293

, 296 (Pa. Super. 2011) (citation

omitted).

       “To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post-sentence motion.

Issues not presented to the sentencing court are waived and cannot be raised

for the first time on appeal.” Commonwealth v. Malovich, 

903 A.2d 1247

,

1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)

(stating that “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal”).

____________________________________________


8 In his concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of sentence, Appellant elaborates
that the trial court abused its discretion in that it failed to give any weight to
the age of defendant’s juvenile adjudications, particularly a nineteen-year-old
adjudication for aggravated assault. Appellant’s Brief at 10.

                                          - 16 -
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      Here, in his post-sentence motion, Appellant argued that the aggregate

sentence was above the standard guideline range and greater than necessary

to rehabilitate Appellant and to deter future wrongdoing.     See Appellant’s

Post-Sentence Mot., 7/7/20, at ¶ 7. Appellant also contended that the trial

court erred in imposing an aggregate sentence above the standard guideline

range when his prior record score was mostly based on an old juvenile

adjudication. See Appellant’s Post-Sentence Mot., 7/7/20, at ¶ 8. Appellant,

however, did not raise his claims that the trial court erred by focusing solely

on the seriousness of the offenses, ignoring mitigation evidence, and running

the sentences for count one and two consecutively. See

id. at ¶¶ 1-8.

      Based on our review of the record, we conclude that Appellant has

waived his claims that the trial court abused its discretion by focusing solely

on the seriousness of the offense, ignoring mitigation evidence, and imposing

consecutive sentences by failing to preserve them at sentencing or in his post-

sentence motion.    See 

Malovich, 903 A.2d at 1251

; see also Pa.R.A.P.

302(a).

      As for Appellant’s claim that the trial court erred with respect to the

weight it gave to his prior record score, that claim was preserved in his post-

sentence motion, his 1925(b) statement, and in his brief’s concise statement

of the reasons relied upon for allowance of appeal. See 

Corley, 31 A.3d at

296

. However, we hold that this claim does not present a substantial question




                                    - 17 -
J-S06020-21



for our review.9 See Commonwealth v. Yuhasz, 

923 A.2d 1111

, 1118 (Pa.

2007) (noting that the sentencing guidelines “are merely one factor among

many that the court must consider in imposing a sentence” (citation

omitted)); Commonwealth v. Zirkle, 

107 A.3d 127

, 133 (Pa. Super. 2014)

(stating that “a claim that a court did not weigh the [sentencing] factors as

an appellant wishes does not raise a substantial question” (citations omitted)).

       For these reasons, we conclude that Appellant has failed to preserve or

raise a substantial question warranting further review.            Accordingly,

Appellant’s challenges to the discretionary aspects of his sentence fail.10

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2021



____________________________________________


9 We note that a claim that the trial court miscalculated a defendant’s prior
record score raises a substantial question that the sentence is inappropriate.
See Commonwealth v. Anderson, 

830 A.2d 1013

, 1018 (Pa. Super. 2003).
However, Appellant only challenges the weight the trial court gave to the prior
record score, and does not argue that the trial court erred in including
Appellant’s juvenile adjudications in the calculation of the prior record score.
See Appellant’s Brief at 10-11.

10Even if we were to review the merits of the issues preserved in Appellant’s
post-sentence motion, we would, ultimately, find them meritless.

                                          - 18 -

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