Com. v. Smith, C.

J-S62034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CLAYTON SMITH

Appellant No. 648 WDA 2015

Appeal from the Judgment of Sentence March 25, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011556-2014

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 16, 2015

Appellant, Clayton Smith, appeals from the judgment of sentence

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

trial convictions for terroristic threats and disorderly conduct.1 We affirm.

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

On August 16, 2014, Melinda Snyder (“Victim”) was working as the

overnight pharmacist at the CVS at 4610 Centre Avenue in Pittsburgh.

Around 11:00 p.m., Appellant approached the pharmacy counter with a

narcotics prescription. Victim told Appellant the pharmacy did not have the

medication in stock. Appellant then called Victim a “fucking bitch.” Victim

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1
18 Pa.C.S.A. §§ 2706(a)(1); 5503(a)(3), respectively.

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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informed Appellant that he could not use that type of language in the store

and asked Appellant to leave. Appellant refused to leave and continued

using obscene language. Victim told Appellant that if he did not leave the

store Victim would call the police. Appellant responded: “You’re lucky I don’t

come behind there and slit your fucking throat.” Appellant lingered for a

short time between the drop-off/pick-up counters but finally exited the store

when Victim called 911.

The Commonwealth charged Appellant with terroristic threats and

disorderly conduct. Appellant proceeded to a bench trial on March 25, 2015.

Victim testified about the August 16, 2014 incident. Victim said Appellant

was very loud, intimidating, scary, and frightening. Victim testified she

called the police because she feared Appellant might carry out his threat,

and Victim was unsure if Appellant was carrying a weapon. Victim indicated

Appellant is much taller than she is, and Appellant could have jumped over

the pharmacy counter without difficulty. The Commonwealth also presented

testimony from Officer Edward Wolff, who responded to the 911 call. Officer

Wolff saw a man matching the suspect’s description at a bus stop across the

street from the CVS. Officer Wolff confronted Appellant and asked him

about the incident. Appellant told the officer he had tried to obtain a

prescription and became upset when the pharmacist would not fill his

prescription. Appellant admitted to the officer that Appellant had told the

pharmacist “somebody would get hurt.” The defense did not present any

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evidence at trial.

At the conclusion of evidence, the court convicted Appellant of

terroristic threats and disorderly conduct. The court specifically noted it

found Victim’s testimony credible. Appellant proceeded directly to

sentencing. The Commonwealth requested “at least” a standard range

sentence (six to sixteen months’ imprisonment). Defense counsel advocated

for something other than jail time and suggested intermediate punishment

or home monitoring. Defense counsel explained Appellant takes medication

for paranoia, has severe mental health issues, and suffers from severe

kidney failure. Defense counsel also highlighted that Appellant had not

committed criminal acts for nearly fifteen years. The court acknowledged

that Appellant’s last criminal case was in 2003, so the court declined to

impose a sentence of imprisonment. Instead, the court sentenced Appellant

to five (5) years’ probation for the terroristic threats conviction and imposed

no further penalty for the remaining conviction.

On March 30, 2015, Appellant timely filed a post-sentence motion,

which the court denied on April 8, 2015. Appellant timely filed a notice of

appeal on April 21, 2015. On April 30, 2015, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), which Appellant timely filed on May 19, 2015.

Appellant raises three issues for our review:

DID THE TRIAL COURT ERR IN CONVICTING [APPELLANT]
OF MAKING TERRORISTIC THREATS AGAINST [VICTIM]

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WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION AT THIS COUNT, BECAUSE NO EVIDENCE
PROVED [APPELLANT’S] INTENT TO TERRORIZE VICTIM?

DID THE TRIAL COURT ERR IN CONVICTING [APPELLANT]
OF MAKING TERRORISTIC THREATS AGAINST [VICTIM] IN
SPITE OF THE WEIGHT OF THE EVIDENCE, WHERE THE
EVIDENCE REVEALED THAT [APPELLANT] NEVER
ADVANCED TOWARD [VICTIM] AND LEFT THE STORE
IMMEDIATELY AFTER UTTERING THE OBSCENE
LANGUAGE?

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
SENTENCING [APPELLANT] TO A TERM OF PROBATION
THAT WAS MANIFESTLY EXCESSIVE AND WITHOUT
CONSIDERATION OF THE SENTENCING GUIDELINES AND
STATUTORY FACTORS OF 42 PA.C.S. § 9721(B) AND
9781(D)?

(Appellant’s Brief at 3).

In his first issue, Appellant argues he did not advance toward Victim

during their “verbal altercation.” Appellant asserts he left the store

immediately after uttering the obscene statements. Appellant emphasizes

that a pharmacy counter physically separated Appellant from Victim.

Appellant maintains he did not possess a weapon during the incident. Aside

from the actual utterance of Appellant’s statements, Appellant contends the

Commonwealth presented no evidence to show Appellant had the requisite

intent to cause Victim terror. Appellant suggests his immediate departure

from the store demonstrates that his statements were merely the result of

transitory anger due to his inability to obtain his prescription medication,

rather than a settled purpose to cause terror or carry out a crime of

violence. Appellant concludes the Commonwealth failed to prove Appellant

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had the necessary criminal intent, and this Court should reverse his

conviction for terroristic threats and vacate his judgment of sentence.2 We

disagree.

When examining a challenge to the sufficiency of evidence:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

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2
Appellant also claims he did not make the statements at issue with
“reckless disregard” of the risk of causing terror. See 18 Pa.C.S.A. §
2706(a)(3) (stating person commits terroristic threats if he communicates,
either directly or indirectly, threat to otherwise cause serious public
inconvenience, or cause terror or serious public inconvenience with reckless
disregard of risk of causing such terror or inconvenience). The court did not
convict Appellant under Section 2706(a)(3), so we give this contention no
further attention.

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denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

The Crimes Code defines the offense of terroristic threats, in relevant

part, as follows:

§ 2706. Terroristic threats

(a) Offense defined.—A person commits the crime of
terroristic threats if the person communicates, either
directly or indirectly, a threat to:

(1) commit any crime of violence with intent to
terrorize another[.]

* * *

18 Pa.C.S.A. § 2706(a)(1). “Neither the ability to carry out the threat nor a

belief by the person threatened that it will be carried out is an essential

element of the crime.” Commonwealth v. Fenton, 750 A.2d 863, 865

(Pa.Super. 2000) (internal citation and quotation marks omitted). “Rather,

the harm sought to be prevented by the statute is the psychological distress

that follows from an invasion of another’s sense of personal security.” Id.

“The purpose of [Section 2706] is to impose criminal liability on

persons who make threats which seriously impair personal security or public

convenience. It is not intended by this section to penalize mere spur-of-the-

moment threats which result from anger.” 18 Pa.C.S.A. § 2706, Comment.

Nevertheless, “[b]eing angry does not render a person incapable of forming

the intent to terrorize.” Fenton, supra. In evaluating intent, the court

must consider “the totality of the circumstances to determine whether the

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threat was a result of a heated verbal exchange or confrontation.” In re

J.H., 797 A.2d 260, 263 (Pa.Super. 2002) (affirming juvenile’s adjudication

of delinquency for terroristic threats where juvenile threatened his teacher

that if she addressed juvenile’s unruly behavior with juvenile’s probation

officer, “it would be the last thing she ever did”; rejecting juvenile’s claim

that statement was “spur-of-the-moment” threat which resulted from anger

where juvenile did not make threat in context of heated verbal exchange or

heated confrontation; rather, juvenile made threat in response to his

teacher’s advisory statement about consequences juvenile would face as

result of his inappropriate behavior); Commonwealth v. Tizer, 684 A.2d

597 (Pa.Super. 1996) (explaining evidence was sufficient to sustain

appellant’s conviction for terroristic threats where appellant accused his

brother of conspiring to prevent appellant from accessing appellant’s trust

fund and then threatened to kill his brother by stabbing him through heart

with knife; appellant’s statements were not made in “spur-of-the-moment”

during heated exchange; victim had not threatened to hurt or harm

appellant in any way and appellant’s statements were not by-product of any

argument).3 Compare Commonwealth v. Anneski, 525 A.2d 373

(Pa.Super. 1987), appeal denied, 516 Pa. 621, 532 A.2d 19 (1987) (granting
____________________________________________

3
After analyzing the appellant’s sufficiency of the evidence complaint, the
Tizer Court ultimately vacated the judgment of sentence and remanded for
a reevaluation of the appellant’s competency because the trial court had
used the incorrect standard in its competency determination.

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appellant new trial where weight of evidence did not support appellant’s

conviction for terroristic threats; appellant told her neighbor that if neighbor

tried again to run over her kids at bus stop, appellant would bring over gun

and use it; evidence disclosed that appellant spoke in anger, during heated

argument, because she believed neighbor’s automobile had struck her child

while walking to bus stop along rural roadway and because appellant feared

for future safety of her children; appellant’s statement was “spur-of-the-

moment” threat resulting from transitory anger prompted by neighbor’s prior

threat to hit appellant’s children with her car if they continued to obstruct

her vehicle’s passage); Commonwealth v. Kidd, 442 A.2d 826 (Pa.Super.

1982) (reversing appellant’s conviction for terroristic threats where record

contained insufficient evidence that appellant intended to place officers in

state of fear that agitates body and mind; appellant made obscene

statements to police officers following his arrest for public drunkenness,

while he was being treated in emergency room for cuts caused by falling

down; appellant shouted he was going to use machine guns to kill arresting

officers if given opportunity to do so; appellant’s hands were handcuffed

behind his back when he made statement; appellant was obviously

inebriated and in agitated and angry state of mind when he made threats;

appellant’s conduct expressed transitory anger rather than settled purpose

to carry out threat or to terrorize).

Instantly, the trial court analyzed Appellant’s sufficiency challenge as

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follows:

Terroristic threat[s] has a few elements. First, the
defendant communicated a threat either directly or
indirectly. [Appellant] told the nighttime pharmacist at the
CVS store in North Oakland that “he was going to come
behind the counter and slit her fucking throat.” The
second element is that the threat was to commit a crime of
violence. Cutting one’s throat is a crime of violence. The
final element is the intent part of the crime. The accused
must [act] with the intent to terrorize another. The
circumstances show this was done. The reaction of the
pharmacist was very telling. She was afraid the threat
would be carried out. Contributing to her fear was the
time of night, the location, [Appellant] came looking for
prescribed drugs, she didn’t have any of those pills, and
the counter height was low and could have been an easy
hurdle for [Appellant] to jump over. The totality of the
circumstances withstand the sufficiency argument being
advanced.

(Trial Court Opinion, filed June 9, 2015, at 2) (internal citations omitted).

We see no reason to disrupt the court’s determination as fact-finder. See

Hansley, supra. Appellant walked into a CVS, approached Victim with a

prescription, and began yelling obscenities at Victim when he learned the

pharmacy did not have his medication in stock. When Victim asked

Appellant to leave the store, Appellant threatened her. Appellant and Victim

had not been involved in a confrontation prior to Appellant’s threat. Victim

had not harmed or threatened to harm Appellant in any way; she merely

informed Appellant she could not fill his prescription. Thus, the record

shows Appellant’s threat was not a “spur-of-the-moment” statement made

during, or as the by-product of, a heated discussion. See 18 Pa.C.S.A. §

2706(a)(1); In re J.H., supra; Tizer, supra. Compare Anneski, supra;

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Kidd, supra. Viewed in the light most favorable to the Commonwealth as

verdict-winner, the evidence was sufficient to sustain Appellant’s conviction

for terroristic threats.4 See Hansley, supra.

In his second issue, Appellant argues the court afforded too much

weight to Victim’s testimony that she feared Appellant might carry out his

threat. Appellant contends Victim’s fear is irrelevant to a determination of

whether Appellant possessed the requisite intent to terrorize. Appellant

insists the trial court substituted Victim’s fear for the intent element of the

crime. Aside from the actual threat made, Appellant claims the

Commonwealth presented no evidence that Appellant intended to cause

Victim terror. Appellant maintains the court failed to afford appropriate

weight to the facts that (1) Appellant did not advance toward Victim during

the incident; (2) Appellant left the premises immediately after making the

statements; (3) there was a counter physically separating Appellant and

Victim; and (4) Appellant did not possess a weapon. Appellant further

contends the court placed too much weight on the actual obscene language

used. Appellant complains the court effectively equated his utterance with a

specific intent to cause terror. Appellant submits the court also improperly

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4
The record also belies Appellant’s contention that he immediately left the
store after threatening Victim. Victim testified Appellant lingered between
the drop-off/pick-up counters before exiting, and Victim feared Appellant
might carry out his threat during that time. The court found Victim’s
testimony credible.

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commented on Appellant’s physical appearance when rendering its verdict.

Appellant concludes the court’s terroristic threats verdict was against the

weight of the evidence, and this Court must grant him a new trial.5 We

cannot agree.

Initially, we observe:

[G]enerally…issues not raised in a Rule 1925(b) statement
will be deemed waived for review. An appellant’s concise
statement must properly specify the error to be addressed
on appeal. In other words, the Rule 1925(b) statement
must be “specific enough for the trial court to identify and
address the issue [an appellant] wishe[s] to raise on
appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d
956 (2007). “[A] [c]oncise [s]tatement which is too vague
to allow the court to identify the issues raised on appeal is
the functional equivalent of no [c]oncise [s]tatement at
all.” Id. The court’s review and legal analysis can be
fatally impaired when the court has to guess at the issues
raised. Thus, if a concise statement is too vague, the
court may find waiver.

Hansley, supra at 415 (some internal citations omitted). See also

Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa.Super. 2002) (holding
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5
Appellant also avers the court abused its discretion by “borrowing
concepts” from the crime of harassment when the court commented at the
conclusion of the evidence: “I mean, what purpose does [Appellant’s
statement] serve? What could [Victim] have done that would be a
legitimate solicitation of that response from someone?” (N.T. Trial, 3/25/15,
at 23). Appellant alleges the court misapplied the law by using language
from the harassment statute to convict Appellant of terroristic threats.
Initially, Appellant’s complaint is not a proper challenge to the weight of the
evidence. Additionally, Appellant isolates the court’s remarks from proper
context. Nothing in the record substantiates Appellant’s contention that the
court used the elements of the harassment statute to convict Appellant of
terroristic threats. Consequently, this claim warrants no further attention.

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appellant waived challenge to weight of evidence where his Rule 1925(b)

statement was too vague to permit review of that complaint; on appeal,

appellant raised six specific reasons alleging why verdict was against weight

of evidence; however, in his Rule 1925(b) statement, Appellant merely

stated: “the verdict of the jury was against the weight of the credible

evidence as to all of the charges”).

Instantly, Appellant presented his challenge to the weight of the

evidence in his post-sentence motion and in his Rule 1925(b) statement as

follows: “[Appellant] asserts that the [c]ourt’s verdict regarding the

terroristic threats charge was against the weight of the evidence.”

(Appellant’s Post-Sentence Motion, filed March 30, 2015, at 2); (Appellant’s

Rule 1925(b) Statement, filed May 19, 2015, at 3). In reviewing Appellant’s

weight claim, the trial court explained:

The weight of [the evidence claim] is waived. [Appellant’s
concise statement] repeated the one sentence argument
mentioned in his [post-sentence motion]. While it is true
that attacks on evidence’s weight must be brought to the
trial court’s attention, much more is needed than what
[Appellant] has put forth. A weight claim entails a
balancing. It is incumbent upon the losing party to explain
how the balancing act used by this [c]ourt was so out-of-
whack with reason that one’s sense of justice is offended.
[Appellant] did not comply with this most rudimentary
aspect of preserving a weight challenge.

(Trial Court Opinion at 2). We accept the trial court’s waiver analysis.

Appellant’s weight of the evidence challenge as presented in his post-

sentence motion and Rule 1925(b) statement was too vague for the trial

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court to identify and address the precise claims Appellant now raises on

appeal. Thus, Appellant’s second issue is waived. See Hansley, supra;

Seibert, supra.

Moreover:

The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the…verdict if it is so contrary to
the evidence as to shock one’s sense of justice.

Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted). A “trial court’s denial of a motion for a new trial

based on a weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Rivera, 603 Pa. 340, 363, 983 A.2d 1211, 1225

(2009), cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191

(2010).

Here, the trial court sat as fact-finder and was free to accept as

credible Victim’s testimony concerning her encounter with Appellant, and to

determine how much weight to afford the evidence presented. See

Champney, supra. We see no reason to disturb the court’s denial of relief

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on Appellant’s weight claim. See Rivera, supra; Champney, supra.

Thus, even if Appellant had properly preserved his weight claim, it would

merit no relief.

In his third issue, Appellant argues the court’s imposition of a five-year

probationary sentence was manifestly excessive. Appellant contends the

sentencing guidelines called for a standard range sentence of six to sixteen

months’ imprisonment, with nineteen months in the aggravated range.

Appellant insists the court’s imposition of the statutory maximum term of

five years’ probation represents a forty-one month increase from the

aggravated range of the guidelines.6 Appellant maintains the court imposed

the statutory maximum term of probation solely due to the impact on

Victim. Appellant complains the court failed to consider the relevant

statutory sentencing factors, and the imposition of a sentence outside of the

guidelines was “clearly unreasonable” in violation of 42 Pa.C.S.A. §

9781(c)(3). As presented, Appellant’s claims implicate the discretionary

aspects of sentencing. See Commonwealth v. Feucht, 955 A.2d 377

(Pa.Super. 2008), appeal denied, 600 Pa. 728, 963 A.2d 467 (2008)

(explaining claim that court imposed unreasonable sentence outside of

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6
Appellant misunderstands the sentencing guidelines, which do not apply to
sentences of probation. See 204 Pa. Code § 303.9(e) (stating all numbers
in sentencing guidelines suggest months of minimum confinement
pursuant to Section 9755(b) (partial confinement) and Section 9756(b)
(total confinement)).

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sentencing guidelines and violated Section 9781(c)(3) challenges

discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive

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:

[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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

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, 935 (Pa.Super. 2013),

appeal denied, 621 Pa. 682, 76 A.3d 538 (2013).

What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.Super.

2007). A substantial question exists “only when the appellant advances a

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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).

A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Commonwealth v. Mouzon, 571

Pa. 419, 430, 812 A.2d 617, 624 (2002). Bald allegations of excessiveness,

however, do not raise a substantial question to warrant appellate review.

Id. at 435, 812 A.2d at 627. Rather, a substantial question will be found

“only where the appellant’s Rule 2119(f) statement sufficiently articulates

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….” Id. Nevertheless,

“[a]n allegation that a sentencing court failed to consider or did not

adequately consider certain factors does not raise a substantial question that

the sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668

A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (internal citation and quotation marks omitted). See also

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining

allegation that sentencing court failed to consider specific mitigating factor

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generally does not raise substantial question; claim that sentencing court

ignored appellant’s rehabilitative needs failed to raise substantial question).

Instantly, Appellant timely filed a post-sentence motion on March 30,

2015, challenging the discretionary aspects of his sentence. Nevertheless,

Appellant raised a different sentencing complaint in his post-sentence motion

than he presents on appeal. Specifically, Appellant phrased his sentencing

claim in his post-sentence motion as follows: “Appellant respectfully asks

that this Honorable [c]ourt reconsider the sentence imposed on March 25,

2015, as [Appellant] asserts that the term of probation…does not reflect his

amenability to rehabilitation and the mitigating evidence presented at the

sentencing hearing.” (Appellant’s Post-Sentence Motion at 2). Significantly,

Appellant’s post-sentence motion did not mention the sentencing claims he

now raises on appeal (i.e., the court imposed an unreasonable sentence

outside of the guidelines in violation of Section 9781(c)(3)). Thus,

Appellant’s third issue on appeal is waived. See Griffin, supra.

Moreover, the claim Appellant preserved in his post-sentence motion

(that the court failed to consider mitigating evidence and Appellant’s

amenability to rehabilitation) does not raise a substantial question for our

review. See Cruz-Centeno, supra; Berry, supra. Furthermore, defense

counsel informed the court at sentencing about Appellant’s health issues and

requested a sentence other than jail time so that Appellant could continue

with his health treatment. The court granted Appellant’s request by

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imposing only a probationary sentence. Therefore, even if Appellant had

pursued on appeal the same issue he preserved in his post-sentence motion,

it would merit no relief. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/16/2015

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