J-S67035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ABDOU IDRRISSA,
Appellant No. 564 MDA 2015
Appeal from the Judgment of Sentence January 21, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0001945-2009
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 13, 2016
Appellant, Abdou Idrrissa, appeals from the judgment of sentence
imposed on January 21, 2015, following his jury conviction of rape of an
unconscious victim and indecent assault of an unconscious person.1 On
appeal, Appellant challenges the denial of his motion to suppress his
statement to the police, and claims that the verdict was against the weight
of the evidence and that his sentence was excessive and unreasonable. For
the reasons discussed below, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(a)(3) and 3126(a)(4).
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We take the underlying facts and procedural history in this matter
from the trial court’s August 20, 2015 opinion and our independent review of
the certified record.
. . . [O]n December 31, 2008, [the victim] lived in an
apartment [in] Harrisburg, PA. Prior to [that date, the victim’s]
sister, [ ] had been staying with her until she was arrested for a
probation violation. [The victim] knew [Appellant] through [her
sister] although she was not sure whether they were in a “dating
relationship” or if it was “a fling.” It was not until prior to trial
that [the victim] questioned her sister about the relationship and
found out that [the sister and Appellant] were in a sexual
relationship.
. . . On December 31, 2008, [the victim] was at her
friend[’s] house, who was also her neighbor, when she received
several calls on her cell phone from [Appellant]. He was asking
if he could come by her apartment to help [the sister] “put
money on her books,” meaning placing money in her personal
account in the work release facility where she was being
detained. [Appellant] was insistent about coming over, but [the
victim] kept telling him it was too late.
[The victim] returned to her apartment at approximately
11:00 p.m. and proceeded to take the prescription medication
Lexapro and Tylenol P.M. She immediately went to bed fully
clothed in pajamas including a bra. She claimed that she just
passed out. She later awoke to a knock at the door at
approximately 3:00 a.m., and when she answered, [Appellant]
was at her door. He asked to use the restroom so, [the victim]
let him in. [The victim] testified that she did not wait for him to
finish in the bathroom; instead, she went back to bed and
“passed out.”
Later she awoke to find her pants and underwear at her
ankles[,] which scared her and prompted her to call her mother.
She called her mother and her friend, [ ], multiple times until
one of them answered the call. Her mother called back at
approximately the same time that [her friend] arrived at the
apartment with police. [The victim’s mother] instructed her to
touch her vaginal area and smell. She . . . did as her mother
instructed and smelled the odor of latex. [The victim]
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acknowledged that a condom was not found at the scene and
that she likely did not have condoms in her apartment at the
time. She also stated that when she awoke, one of her breasts
was out of her bra cup. [The victim had] no knowledge of what
had happened for her to wake in the described state of undress.
[The victim] remained on her bed in the condition in which she
awoke until the police arrived and, ultimately, the paramedics
took her to the emergency room by ambulance.
While at the hospital, a nurse conducted a physical
examination and completed a rape kit. [The victim] admitted to
the nurse that she had used marijuana earlier in the evening and
that prior to bed she had taken Lexapro and Tylenol P.M. She
relayed the details she could remember about what had
happened that night to the nurse. [The victim] eventually
appeared for an interview with Det[ective Manuel] Rivera [of the
Harrisburg Police Bureau] to provide a statement summarizing
her version of the events of December 31, 2008. She agreed to
place a phone call to [Appellant], that would be recorded, during
which she would act as if she remembered and enjoyed the
sexual encounter for the purpose of eliciting any additional
evidence of the crimes.
With respect to any relationship with Appellant, [the
victim] stated that she neither had a conversation with
[Appellant] about any type of sexual relationship nor actually
had sex with him. At the time of the incident, she was involved
in a seven year relationship with a woman . . . who she referred
to as her fiancée. She stated that she did not have a boyfriend
at the time and that she is not sexually attracted to men.
In December 2008, Stefanie Zeller, RN (“Nurse Zeller”)
was an ER nurse at Harrisburg Hospital who had also been
certified as a SAFE nurse which training qualified her to examine
sexual assault victims. Nurse Zeller was called in for duty in the
ER when [the victim] was admitted for an examination.
According to Nurse Zeller, [the victim] relayed to her that, on
December 31, 2008, she had let a male acquaintance into her
residence, fell back to sleep and when she later woke discovered
that she was undressed from the waist down and smelled the
odor of latex. [The victim] disclosed to Nurse Zeller that she
had smoked marijuana and had taken Lexapro and Tylenol
P[.]M[.] that day. Nurse Zeller proceeded to examine [the
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victim] for the purpose of completing a rape kit to collect any
possible evidence of the alleged sexual assault.
Nurse Zeller conducted an overall physical examination
and a physical examination of the vagina and anus. A saliva
specimen, vaginal swab, and an oral swab were collected from
[the victim] and her pubic hair was combed. During [ ] her
examination, Nurse Zeller did not observe any bruising on [the
victim’s] body or trauma to the vaginal vault. According to
Nurse Zeller, [the victim] did not report any pain but she was
clearly upset. . . .
* * *
Det. Rivera . . . oversaw the resulting investigation. On
the morning of December 31st, he met with [the victim] who
ultimately provided a recorded statement recounting her version
of events. By the time of trial however, the transcription of the
statement was not available because the written version was lost
and the memory of the transcribing secretary’s computer had
been wiped clean due to her retirement.
[The victim] agreed to participate in a wiretapped phone
call to [Appellant] for the purpose of gaining further evidence of
the incident and to determine his last name and address. Det.
Rivera and another officer coached [the victim] on what she
should say during the conversation that might elicit an admission
relating to the crime or any other identifying information. After
several attempts to contact [Appellant], he returned a call[,]
which was captured by recording on January 8, 2009. . . .
During the conversation, [Appellant] admitted to having
sexual intercourse with [the victim] on December 30, 2008,
while she was asleep, which information led to his arrest on
February 4, 2009. During the recorded conversation, [Appellant]
said that he knew [the victim] did not remember what had
happened and that he tried to wake her up. He explained that
he thought she [would] be mad about the encounter, so he left
the area.
(Trial Court Opinion, 8/20/15, at 4-9) (record citations omitted).
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On July 13, 2009, the Commonwealth filed an information charging
Appellant with the aforementioned crimes and other related offenses. On
the date scheduled for trial, January 11, 2010, Appellant failed to appear
and the trial court issued a bench warrant. Appellant was apprehended in
Brooklyn on January 18, 2014. On October 15, 2014, Appellant filed a
motion to suppress his statements to the police. The trial court held a
suppression hearing on October 20, 2014, following which the court denied
Appellant’s motion.
. . . The suppression hearing established the following
facts: [Appellant] was arrested on February 4, 2009, and
interviewed by [Det. Rivera]. Det. Rivera became aware that
[Appellant] was of African ethnicity but, spoke English. He later
learned that [Appellant] was from Niger and [Det.] Rivera
explained that, even though he did not recall specifically asking,
he knew Niger was a French speaking country. Det. Rivera
stated that although [Appellant’s] English was not “the best
English,” he was able to comfortably communicate in English
without a problem. Prior to the commencement of the verbal
interview, Det. Rivera spent approximately five [ ] minutes going
over his Miranda[2] warnings to reassure himself that
[Appellant] understood his rights. The specific legal warnings
conveyed to Appellant included his right to remain silent, his
right to counsel prior to speaking to police, the right to have
counsel appointed if he could not afford an attorney, the fact
that any statements could be used against him in a court of law,
and his right to stop speaking to police at any time despite
beginning an interview. After explaining the allegations against
him and when he was sure that Appellant understood that he
was waiving his Miranda rights, Det. Rivera began a verbal
interview during which Appellant provided his version of events.
[Det.] Rivera stated that during the interview, he received no
indication that Appellant did not understand the discussion and if
____________________________________________
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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he did not understand something, [Appellant] asked for
clarification.
The verbal interview lasted approximately [fifteen-twenty]
minutes. Afterwards, [Appellant] agreed to give Det. Rivera a
recorded statement. The transcript of the recorded statement as
well as the recording itself was admitted into evidence at the
suppression hearing.
[Appellant] also testified at the suppression hearing.
[Appellant] moved to the United States from Niger in October of
2005. In his native country he spoke Hausa and French. Upon
arrival, he got job working for an American company where
other French speaking Niger natives worked, some of whom
could translate directions from English. [Appellant] paid money
to marry an American woman, who did not speak Hausa or
French, for the purpose of obtaining “legal papers.” While he
was married from 2006-2008, his wife only spoke English.
Additionally, [Appellant] was an acquaintance of the victim, [ ]
with whom he only spoke English as she did not speak Hausa or
French.
Regarding the recording of the interview with Det. Rivera,
Appellant stated that he understood he was waiving certain
constitutional rights but[] thought he was obliged to answer.
[Appellant] stated that he was nervous and the fact that Det.
Rivera was in plain clothes while carrying a gun meant that he
was required to answer everything he said. [Appellant] never
asked for an interpreter; rather, he assumed that it was the
police officer’s job to ask.
(Trial Ct. Op., at 2-4) (record citations and footnotes omitted).
A jury trial took place on October 20 through 22, 2014, at which time,
the jury found Appellant guilty of the aforementioned offenses. On January
21, 2015, the trial court sentenced Appellant in the upper end of the
standard range of the guidelines to a aggregate term of incarceration of not
less than sixty-six nor more than one hundred thirty-two months. (See N.T.
Sentencing, 1/21/15, at 10-11). On January 30, 2015, trial counsel filed
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both a motion to withdraw his appearance and a post-sentence motion
challenging the weight of the evidence and seeking a modification of
sentence. (See Appellant’s Post-Sentence Motion, 1/30/15, at unnumbered
pages 2-3). On February 3, 2015, the trial court granted counsel’s request
to withdraw. On February 24, 2015, the trial court denied Appellant’s post-
sentence motion.
On March 12, 2015, Appellant, despite now being represented by the
Dauphin County Public Defender’s Office, filed a pro se petition brought
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
On March 20, 2015, the trial court appointed counsel to represent Appellant.
On March 26, 2015, appellate counsel filed the instant, timely appeal from
the judgment of sentence. On April 16, 2015, the trial court concluded that
Appellant had prematurely filed his PCRA petition, vacated the appointment
of PCRA counsel, and dismissed the petition without prejudice. On April 17,
2015, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely
Rule 1925(b) statement on May 7, 2015. On August 20, 2015, the trial
court issued an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review.
I. Whether the trial court erred in denying Appellant’s
[s]uppression [m]otion where he did not knowingly, voluntarily,
and intelligently waive his Miranda rights, in violation of Article
I, Section 9 of the Pennsylvania Constitution and the Fifth
Amendment to the United States Constitution?
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II. Whether the trial court erred in denying Appellant’s [p]ost-
[s]entence [m]otion where his convictions were against the
weight of the evidence so as to shock one’s sense of justice
where Appellant was not shown to have engaged in acts which
constitute the offenses of which he was convicted?
III. Whether the trial court erred in denying Appellant’s [p]ost-
[s]entence [m]otion where his sentence is excessive and
unreasonable and constitutes too severe a punishment in light of
the gravity of the offense, Appellant’s rehabilitative needs, and
what is needed to protect the community?
(Appellant’s Brief, at 7) (unnecessary capitalization, justification and
underlining omitted).
In his first claim, Appellant argues that the trial court erred in denying
his motion to suppress his statement to the police because he was unable to
make a knowing waiver of his Miranda rights because of his poor grasp of
the English language. (See id. at 14-16). We disagree.
When we review a ruling on a motion to suppress, “[w]e must
determine whether the record supports the suppression court’s factual
findings and the legitimacy of the inferences and legal conclusions drawn
from these findings.” Commonwealth v. Holton, 906 A.2d 1246, 1249
(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation
omitted). Because the suppression court in the instant matter found for the
Commonwealth, we will consider only the testimony of the Commonwealth’s
witnesses and any uncontradicted evidence supplied by Appellant. See id.
If the evidence supports the suppression court’s factual findings, we can
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reverse only if there is a mistake in the legal conclusions drawn by the
suppression court. See id.
Appellant has waived this claim. Appellant’s conclusory argument that
his motion should have been granted because of his difficulties with the
English language is, with the exception of a general citation to Miranda,
completely devoid of relevant legal authority. He also completely ignores
our standard of review, citing to elements of Appellant’s testimony that were
contradicted by the Commonwealth’s evidence to support his argument, it is
therefore waived. See Commonwealth v. Cotto, 753 A.2d 217, 224 n.6
(Pa. 2000) (meaningful appellate review is not possible where argument
consists only of bald assertions unsupported by citation to authority or
pertinent discussion of point).
Moreover, his assertions are without merit. Generally, statements
made during custodial interrogation are presumptively involuntary, unless
the police first inform the accused of his Miranda rights. See
Commonwealth v. DiStefano, 782 A.2d 574, 579 (Pa. Super. 2001),
appeal denied, 806 A.2d 858 (Pa. 2002). Further:
The determination of whether a confession is voluntary is a
conclusion of law and, as such, is subject to plenary review.
Moreover, the totality of the circumstances must be considered
in evaluating the voluntariness of a confession. The
determination of whether a defendant has validly waived his
Miranda rights depends upon a two-prong analysis: (1)
whether the waiver was voluntary, in the sense that defendant’s
choice was not the end result of governmental pressure, and (2)
whether the waiver was knowing and intelligent, in the sense
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that it was made with full comprehension of both the nature of
the right being abandoned and the consequence of that choice.
Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006), cert. denied,
549 U.S. 1169 (2007) (citations omitted). “Only if the totality of the
circumstances surrounding the interrogation reveals both an uncoerced
choice and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.” Commonwealth v.
Cephas, 522 A.2d 63, 65 (Pa. Super. 1987), appeal denied, 531 A.2d 1118
(Pa. 1987), cert. denied, 484 U.S. 981 (1987) (emphasis added) (internal
quotation marks omitted). The Commonwealth has the burden to prove “by
a preponderance of the evidence that the waiver is also knowing, and
intelligent.” Id. (emphasis omitted).
When assessing voluntariness the court should look at the following
factors: “the duration and means of the interrogation; the physical and
psychological state of the accused; the conditions attendant to the
detention; the attitude of the interrogator; and any and all other factors
which could drain a person’s ability to withstand suggestion and coercion.”
Commonwealth v. Nester, 709 A.2d 879, 883 (Pa. 1998). See also
Commonwealth v. Sanabria, 385 A.2d 1292, 1294-95 (Pa. 1978) (holding
appellant’s waiver of Miranda rights was knowing, voluntary, and intelligent
despite appellant’s claimed difficulty in understanding English; appellant’s
ability to communicate effectively in English with police before and after his
arrest belied his claims); Commonwealth v. Padilla, 854 A.2d 549, 552-53
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(Pa. Super. 2004) (holding appellant possessed sufficient fluency in English
to understand verbal communication despite his inability to read or write
English; statements made after police read Miranda warnings in English did
not require suppression); Commonwealth v. McFadden, 559 A.2d 58, 60
(Pa. Super. 1989), appeal denied, 568 A.2d 1246 (Pa. 1989) (inability to
read and write English did not invalidate otherwise knowing, voluntary, and
intelligent Miranda waiver).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
Appellant’s first issue merits no relief. The trial court credited the testimony
of Det. Rivera that Appellant understood and spoke English and did not
credit Appellant’s testimony to the contrary. (See Trial Ct. Op., at 11). We
must defer to that finding. See Commonwealth v. Walker, 874 A.2d 667,
671 (Pa. Super. 2005). Further, the trial court reviewed the evidence
underlying its decision as follows:
Review of the record reveals Det. Rivera’s interaction with
[Appellant] began with his arrival at the police station after his
arrest at approximately 7:45 a.m. Appellant was Mirandized
when he was arrested and Det. Rivera went over his
constitutional rights again prior to his verbal interview[,] which
lasted [fifteen-twenty] minutes. The parties began recording the
statement at 8:39 a.m. Clearly [Appellant] was not held for any
great length of time prior to the interview and the questioning
was of a very short duration. Further, as pointed out by
Appellant’s counsel, approximately [fifteen] minutes of the
overall interaction was dedicated to Det. Rivera explaining his
constitutional rights and ensuring that [Appellant] understood
what was happening and what he was agreeing to do. The
record is void of any evidence of coercion or an indication that
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[Appellant] was deprived of sleep, medication, food or drink. If
Det. Rivera had any indication that [Appellant] was not
understanding, such as when they were discuss[ing] a slang
term of a sexual nature, he made sure to state or explain the
term in other ways to ensure Appellant’s understanding. With
respect to his inexperience with the criminal justice system, this
[c]ourt finds [Appellant’s] claim without merit. The record
clearly highlights that he admittedly had enough knowledge of
the legal system to know how to circumvent it by finding a
woman whom he could pay to enter into a sham marriage so he
could legally stay in this country. Finally, the recording of
[Appellant’s] statement establishes a free flowing conversation
during which there were no unresponsive answers that would
indicate any language barrier or misunderstanding.
Therefore, in conclusion, this [c]ourt finds that the record
amply supports the finding that Appellant voluntarily and
knowingly waived his Miranda rights; as such, the denial of
Appellant’s [s]uppression [m]otion was proper.
(Trial Ct. Op., at 13-14). The record supports the trial court’s conclusion
that Appellant’s statements were knowingly, intelligently, and voluntarily
made. See Sanabria, supra at 1294-95; Padilla, supra at 552-53;
McFadden, supra at 60. Thus, even if Appellant had not waived the claim,
Appellant’s first issue lacks merit.
In his second claim, Appellant argues that his conviction was against
the weight of the evidence because the victim’s testimony was not credible.
(See Appellant’s Brief, at 16-18). We disagree.
Initially, we note that Appellant waived this claim because his
argument is completely devoid of citation to any legal authority. See In re
C.R., 113 A.3d 328, 335-36 (Pa. Super. 2015) (finding weight of evidence
claim waived where appellant failed to cite to any legal authority).
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In any event, the claim is without merit.
Our scope and standard of review of a weight of the evidence claim is
as follows:
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and internal quotation marks omitted). “Thus, the 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. Diggs, 949
A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation
omitted).
Here, the trial court rejected Appellant’s weight of the evidence claim,
noting that fact-finding and credibility determinations were matters for the
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jury. (See Trial Ct. Op., at 16). We agree. The record reflects that the jury
chose to credit the testimony of the victim and chose to reject the defense’s
theory of the case. The jury, sitting as finder of fact, was free to believe the
Commonwealth’s witnesses and to disbelieve the defense. See
Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). “[I]t is
for the fact-finder to make credibility determinations, and the finder of fact
may believe all, part, or none of a witness’s testimony.” Commonwealth
v. Lee, 956 A.2d 1024, 1029 (Pa. Super. 2008), appeal denied, 964 A.2d
894 (Pa. 2009) (citation omitted). Thus, even if Appellant had not waived
his weight of the evidence claim, it is without merit.
In his final claim, Appellant argues that his sentence was excessive
and unreasonable because his fiancée testified that his is a “loving,
compassionate, loyal, and dedicated man[,]” who is loved in the community.
(Appellant’s Brief, at 18) (record citation omitted). We disagree.
Preliminarily, we note, “[i]ssues challenging the discretionary aspects
of sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks
omitted). Here, Appellant properly preserved his claim by filing a post-
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sentence motion. (See Appellant’s Post-Sentence Motion, 1/30/15, at
unnumbered pages 2-3).
The right to appeal the discretionary aspects of a sentence is not
absolute. See McAfee, supra at 274. When an appellant challenges the
discretionary aspects of the sentence imposed, he must present “a
substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we
determine whether a substantial question exists. See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,
759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the appeal, which
are necessary only to decide the appeal on the merits.” Id. (emphases in
original).
Here, Appellant has included a Rule 2119(f) statement in his brief.
(See Appellant’s Brief, at 11-13), arguing that his sentence was harsh and
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excessive because his fiancée testified that he was a good person. (See id.
at 12-13). This Court has held that “a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying this
Court’s review of the merits of the underlying claim.” Commonwealth v.
Fisher, 47 A.3d 155, 159 (Pa. Super. 2012), appeal denied, 62 A.3d 378
(Pa. 2013) (citation omitted). Thus, because this claim is a bald allegation of
excessiveness and does not raise any challenge in the claim itself or in the
brief as to a violation of the Sentencing Code or a particular fundamental
norm underlying the sentencing process, we find that it does not raise a
substantial question. See id.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
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