Com. v. Neely, M.

J-S25030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MONICA NEELY :
:
Appellant : No. 1784 MDA 2019

Appeal from the Judgment of Sentence Entered July 31, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004943-2017

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED JUNE 16, 2020

Appellant, Monica Neely, appeals from the July 31, 2019 Judgment of

Sentence entered in the Berks County Court of Common Pleas following her

conviction by a jury of Theft by Deception and Securing Execution of

Documents by Deception.1 Appellant challenges the sufficiency and weight of

the evidence, an evidentiary ruling, and the discretionary aspects of her

sentence. After careful review, we affirm.

Factual and Procedural History

The Commonwealth charged Appellant with the above offenses after

Appellant accompanied, Robert Reddy (“Victim”), on 12 separate occasions

between April 30, 2015, and May 26, 2015, to two local banks where the

____________________________________________

1 18 Pa.C.S. §§ 3922(a)(1) and 4114, respectively.
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Victim made withdrawals totaling $25,900.2 At the time of the crime,

Appellant was 48 years old and the Victim was 86 years old.

On March 21, 2019, the Commonwealth filed a Notice indicating its

intent to present evidence pursuant to Pa.R.E. 404(b) regarding Appellant’s

theft of the Victim’s car in 2015 and the resolution of related criminal charges.3

On April 16, 2019, Appellant filed a Motion in Limine to exclude: (1) the

Rule 404(b) evidence; (2) reference to Appellant’s drug use; (3) evidence of

Appellant’s probation status at the time of the instant crimes; and (4) any

statement that Appellant’s counsel is a public defender. On April 28, 2019,

the court granted Appellant’s Motion to exclude any statement that she is on

probation or that her counsel is a public defender.

On June 17, 2019, the court held a hearing on the outstanding issues

raised in Appellant’s Motion in Limine. That same day, the Commonwealth

filed a Notice of its intent to present evidence pursuant to Rule 404(b) that

the Victim purchased furniture for Appellant and paid her outstanding cable

bill of approximately $2,230.4 Appellant made an oral motion to exclude that

evidence on the record that day.

____________________________________________

2The Commonwealth also charged Appellant with Receiving Stolen Property,
18 Pa.C.S. § 3925(a), but the jury acquitted Appellant of this offense.

3 The Commonwealth dismissed the charges when Appellant reimbursed the
Victim for the value of the car.

4 This evidence was in the form of a collections letter addressed to the Victim
for cable service at an address associated with Appellant.

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On June 19, 2019, the trial court granted Appellant’s Motion in Limine

to exclude evidence of the 2015 car theft and reference to Appellant’s drug

use, but denied the motion to exclude evidence that the Victim paid

Appellant’s cable bill payment and purchased furniture.

Appellant’s two-day jury trial commenced on June 24, 2019. The

Commonwealth presented the testimony of Ms. Samantha Mali, Wyomissing

Police Detective Courtney Garipoli, Berks County Detective Robert Heiden,

Joshua Hartman of the Berks County Area Agency on Aging, Dr. Gary

Champlin, a licensed clinical psychologist contracted by Berks County to

perform capacity evaluations, and Pamela Blumer, a professional fiduciary.

Appellant did not present any evidence or testimony.

Relevantly, the Commonwealth’s evidence established that the following

transpired. On April 22, 2015, the Victim opened a new Metro Bank checking

account with a Fulton Bank cashier’s check in the amount of $28,203.59.

Between April 30, 2015, and May 26, 2015, the Victim made 12 cash

withdrawals from that account, in increments of between $1,000 and $5,000

each, totaling $25,900. Ms. Mali witnessed the Victim make five or six of the

withdrawals, always accompanied by Appellant. Each time Ms. Mali saw

Appellant and the Victim in the bank branch they would walk in together, stop

at the withdrawal slip table, take a withdrawal slip, and proceed to the teller

station to complete the withdrawal.

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On May 26, 2015, Ms. Mali reported the Victim’s withdrawal as

suspicious to security at her branch.5 She thought the withdrawal was

suspicious because, inter alia, it was the second time in two or three days that

Appellant and the Victim had visited her branch and made large withdrawals,

and she had heard Appellant telling the Victim that the money was “for

groceries.” Ms. Mali observed Appellant tell the Victim how much money he

needed to withdraw and then Appellant filled out the withdrawal slip for the

Victim to sign.

Detective Garipoli responded to Metro Bank’s security call and spoke

with Appellant. He found her nervous and trembling. Appellant indicated to

Detective Garipoli that she was the Victim’s nurse. Appellant told Detective

Garipoli that she had accepted money from the Victim in the past and expected

the Victim to pay her that day. Upon further questioning, Appellant admitted

to Detective Garipoli that she was no longer in the nursing field. Detective

Garipoli contacted the Berks County Office of Aging after he completed his

inquiries at the bank.

On April 25, 2015, Dr. Champlin performed a capacity evaluation of the

Victim and diagnosed him with severe dementia. Dr. Champlin opined that

the Victim lacked legal capacity and was partially or totally unable to manage

his financial resources or to meet essential requirements for his physical

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5 See N.T. 6/24/19, at 91.

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health and safety. As a result of Dr. Champlin’s evaluation, the court

appointed Pamela Blumer to represent the Victim’s interests.

Ms. Blumer testified that she had heard Appellant direct the Victim to

tell Ms. Blumer that “boyfriends are allowed to give their girlfriends gifts.” 6

She also testified about the condition of the Victim’s home, which she first

visited in January 2015. Between that time and her appointment as the

Victim’s guardian at the end of May 2015, the condition of the Victim’s home

was consistent. She found it dusty and disorganized, with takeout boxes piled

in a corner. The Victim did not have any new or expensive clothing or

furniture, and, in fact, used outdoor patio furniture in his living room. It did

not appear to Ms. Blumer that the Victim was using the kitchen, and there was

very little food in the refrigerator. The food that was there was inedible and

some canned goods were expired. Some of the Victim’s medications had also

expired.7

Ms. Blumer testified that Appellant introduced herself as the Victim’s

nurse. However, with respect to the Victim’s health, Ms. Blumer testified that

she never saw Appellant provide the Victim with any medical care or any

evidence that that the Victim had been receiving medical care at all. In

particular, the Victim was in renal failure, had a melanoma on his face that he

____________________________________________

6 N.T, 6/25/19, at 183-84.

7 See N.T., 6/25/19, at 172-185.

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was not tending to, and had a hernia that impeded his ability to sit

comfortably. She also testified that she did not believe that the Victim was

taking his prescribed heart medication.8

Mr. Hartman from the Berks County Area Agency on Aging testified that,

during a conversation with Appellant on May 4, 2015, Appellant told him that

she and the Victim planned to get married, but they had not yet set a wedding

date.9

The Commonwealth also introduced documentary evidence that: (1) on

May 7, 2015, the Victim issued a check to Unclaimed Freight in the amount of

$2,947.86 for furniture, most of which the store delivered to Appellant’s home

address; (2) on May 27, 2015, the Victim issued a check to Giant Food Stores

for $273;10 and (3) the Victim was paying for an Xfinity cable package for

Appellant’s address. The evidence demonstrated that the Victim received a

total of $1866 per month in income.11 Therefore, the combined total of the

above questionable purchases and 12 cash withdrawals would have left him
____________________________________________

8 See N.T., 6/25/19, at 176, 181, 187.

9 See N.T, 6/25/19, at 193-94.

10According to the U.S. Department of Agriculture, in 2015 a single man of
the Victim’s age could expect to spend between $173 and $350 a month on
groceries.
11The Victim received a check for $500 from social security, a $1300 pension,
and a $66 dividend payment from Raymond James monthly. N.T., 6/25/19,
at 180. He paid approximately $260 for health insurance and $350 to $400
for utilities monthly. Id.

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more than $600 overdrawn for the month of May, before he had even paid

any of his bills.

Following trial, the jury convicted Appellant of Theft by Deception and

Securing Execution of Documents by Deception.

On July 31, 2019, the trial court sentenced Appellant to one to five years’

incarceration with 20 days’ credit for time served for her Theft by Deception

conviction12 and a concurrent term of 2 years’ probation for her Securing

Execution of Documents by Deception. The court also ordered Appellant to

pay restitution in the amount of $23,900 to the Victim.

On August 12, 2019, Appellant filed a Post-Sentence Motion, which the

trial court denied on October 3, 2019.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether the Commonwealth failed to present sufficient
evidence to support a verdict of guilty for the count of Theft by
Deception, specifically, that the evidence failed to establish that
[] Appellant obtained or withheld property from [the Victim] and
that she did so by deception[?]

2. Whether the Commonwealth failed to present sufficient
evidence to support a verdict of guilty for the count of Securing
____________________________________________

12The court imposed a mandatory minimum sentence for Appellant’s Theft by
Deception conviction pursuant to 42 Pa.C.S. § 9717 (Sentences for offenses
against elderly persons) because the Victim was over 60 years old and
Appellant was under 60 years old. The statute provides for mandatory
minimum sentence of 12 months’ incarceration at the court’s discretion
“where the court finds justifiable cause and that finding is written in the
opinion.” 42 Pa.C.S. § 9717(a).

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Execution of Documents by Deception, specifically that the
evidence failed to establish that Appellant caused [the Victim] to
execute an instrument affecting his pecuniary interest and that
she did so by deception[?]

3. Whether the [t]rial [c]ourt abused its discretion when it
permitted a guilty verdict that was against the weight of the
evidence, where: the weight of the evidence showed that
Appellant and [the Victim] were in a relationship and money that
[the Victim] gave to Appellant, if any money was given, was a
gift[?]

4. Whether the [t]rial [c]ourt erred when it allowed evidence [that
the Victim] paid for furniture delivered to Appellant’s address,
where the evidence was not relevant to the facts disputed at trial
and was substantially more prejudicial than probative[?]

5. Whether the [t]rial [c]ourt erred and abused its discretion when
it sentenced Appellant to one (1) to five (5) years of incarceration,
which is manifestly excessive under the circumstances of the case,
considering the mitigating factors presented at sentencing and
[the] rehabilitative needs of Appellant, as well as the protection of
the public, [the] gravity of the offense, and the impact on the life
of [the Victim] and the community[?]

Appellant’s Brief at 10-11.

Sufficiency of the Evidence

Appellant’s first two issues challenge the sufficiency of the

Commonwealth’s evidence in support of Appellant’s convictions of Theft by

Deception and Securing Execution of Documents by Deception.

“A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.

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Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citations omitted). “Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence.” Id. “In conducting this review, the appellate court

may not weigh the evidence and substitute its judgment for the fact-finder.”

Id.

Theft by Deception

Under Pennsylvania law, “[a] person is guilty of theft if [s]he

intentionally obtains or withholds property of another by deception.” 18

Pa.C.S. § 3922(a). Relevantly, under the Crimes Code “[a] person deceives

if [s]he intentionally . . . creates or reinforces a false impression, including

false impressions as to law, value, intention[,] or other state of mind[.]” Id.

at 3922(a)(1).

In challenging the sufficiency of the Commonwealth’s evidence in

support of her Theft by Deception conviction, Appellant claims that the

Commonwealth failed to prove that she received—by deception or otherwise—

any of the money that the Victim withdrew from his accounts. Appellant’s

Brief at 23-25. She claims, without citation to the record, that the evidence

showed that the Victim “received all of the money taken out of the account at

the bank.” Id.at 24-25. Appellant asserts that the Commonwealth’s evidence

only established that she accompanied the Victim to the bank for a series of

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transactions, not that she received any of the money or that she filled out or

signed bank withdrawal slips on the Victim’s behalf. Id. at 25.

She further avers that the Commonwealth failed to offer evidence that

she was aware of the Victim’s diminished mental capacity and asserts, without

citation to case law that, “[p]rior to May 28, 2015[,] it is presumed that [the

victim] was competent as no[] court finding had been made that [the Victim]

was unable to act on his own behalf.” Id. Last, Appellant asserts that

Detective Garipoli’s testimony established Appellant’s defense that she had

been assisting the Victim with running errands and as a driver, and that she

expected the Victim to give her an unspecified amount money on May 26,

2015, as reimbursement for her time and expenses. Id.

Following our review of the Commonwealth’s direct and circumstantial

evidence in the light most favorable to the Commonwealth as verdict-winner,

we conclude that the Commonwealth presented sufficient evidence from which

the jury could find every element of the crime beyond a reasonable doubt. In

particular, the Commonwealth offered evidence that Appellant repeatedly

accompanied the Victim to the bank where she directed him to and assisted

him with withdrawing money from his checking account. The evidence

demonstrated that the Victim had not been spending the money that he

withdrew on himself because he used outdoor patio furniture in his living

room, did not have expensive clothes and furniture, and had almost no edible

food in his home. Instead, the evidence that the Victim bought Appellant her

groceries and new furniture and paid her cable bill established that Appellant

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was the only person who benefitted from the withdrawals. It was also

reasonable for the jury to infer from the evidence that Appellant was lying

about the nature of her relationship with the Victim and for the jury to discount

the possibility that Appellant was either a nurse or romantic partner to the

Victim. In light of the foregoing, we conclude that the Commonwealth

adduced sufficient evidence to support Appellant’s conviction of Theft by

Deception. Accordingly, this claim fails.

Securing the Execution of Documents by Deception

In her second issue, Appellant claims that the Commonwealth failed to

prove every element of the offense of Securing the Execution of Documents

by Deception. Appellant’s Brief at 26.

Under the Crimes Code, a person is guilty of Securing Execution of

Documents by Deception if she “causes another to execute any instrument

affecting or purporting to affect or likely to affect the pecuniary interest of any

person.” 18 Pa.C.S. § 4114.

Appellant argues that the Commonwealth did not present evidence to

establish that she deceived the Victim thereby causing him to execute an

instrument affecting his pecuniary interest. Appellant’s Brief at 26, 28. She

asserts that she and the Victim had “established a close relationship” and he

referred to her as his girlfriend. Id. at 28. She concedes that the Victim “was

in a better financial situation than [her] in 2015,” but argues that the Victim

was merely “doting on” her and that the Commonwealth failed to prove that

there was anything “inherently bad about these transactions.” Id. at 28-29.

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She blames lack of societal support for a relationship between a woman of her

age and a man of the Victim’s age for engendering suspicion against her. Id.

at 29.

In large part, Appellant’s arguments pertain to the weight the trial court

gave to the evidence, which we discuss in detail infra. To the extent that

Appellant challenges the sufficiency of the Commonwealth’s evidence, we

observe that the credible evidence indicated that: (1) the Victim was suffering

from dementia and could not make decisions on his own behalf; (2) Appellant

instructed the Victim to tell Ms. Bulmer that boyfriends can give girlfriends

gifts; (3) Appellant helped the Victim fill out bank withdrawal slips and

provided the reason for the withdrawal, i.e., for groceries; (4) the contents of

the Victim’s kitchen belied Appellant’s reason for the withdrawal; and (5) the

Victim spent more than $200 at Giant Food Stores the day after making a

large withdrawal from his checking account ostensibly for groceries.

In light of this evidence, the jury’s decision to discount the possibility

that Appellant was acting either as the Victim’s nurse or as his romantic

partner and to conclude that Appellant caused the Victim to execute bank

withdrawal slips in a way that affected his pecuniary interest was reasonable.

Consequently, the evidence was sufficient to prove every element of the

offense of Securing Execution of Documents by Deception, and Appellant is

not entitled to relief.

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Weight of the Evidence

In her third issue, Appellant challenges the weight the jury gave to the

evidence in support of both of her convictions. She argues that the jury should

have weighed more heavily her assertion that the money she received from

the Victim was a gift because, at the time of the withdrawals, no one had

determined that the Victim was not competent to manage his finances.

Appellant’s Brief at 30. She further argues that the Victim “should be

presumed competent on the dates in question because they [precede] any

diagnosis[.]” Id. at 31.

In addressing an appellant’s weight claim, we apply the following

principles. “The weight of the evidence is exclusively for the finder of fact,

who is free to believe all, none[,] or some of the evidence and to determine

the credibility of the witnesses.” Commonwealth v. Talbert, 129 A.3d 536,

545 (Pa. Super. 2015) (quotation marks and citation omitted). Resolving

contradictory testimony and questions of credibility are matters for the finder

of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).

It is well-settled that we cannot substitute our judgment for that of the trier

of fact. Talbert, supra at 546.

Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“Because the trial judge has had the opportunity to hear and see the evidence

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presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546. “One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict was or was

not against the weight of the evidence and that a new trial should be granted

in the interest of justice.” Id.

Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (internal quotation

marks and citation omitted). As our Supreme Court has made clear, reversal

is only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations and emphasis omitted).

“[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014). For that reason, the trial court need not view the evidence in the light

most favorable to the verdict winner, and may instead use its discretion in

concluding whether the verdict was against the weight of the evidence.

Widmer, 744 A.2d at 751 n.3.

Instantly, the jury credited the testimony of the Commonwealth’s

witnesses and did not credit Appellant’s theory of the case that Appellant was

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either the Victim’s nurse or girlfriend and the Victim willingly gave her almost

$24,000. Appellant essentially asks this Court to reassess the credibility of

the Commonwealth’s witnesses and Appellant, and reweigh the testimony and

evidence presented at trial. We cannot and will not do so. Our review of the

record shows that the evidence is not tenuous, vague, or uncertain, and the

verdict was not so contrary as to shock the court’s conscience. Accordingly,

we discern no abuse of discretion in the trial court’s denial of Appellant’s

weight claim.

Evidentiary Issue

In her fourth issue, Appellant asserts that the trial court erred in denying

her Motion in Limine to preclude admission of evidence that the Victim paid

for furniture delivered to Appellant’s address and for her outstanding cable bill

because that evidence was more prejudicial than probative. Appellant’s Brief

at 34. Appellant argues that this evidence—payments for purchases in

amounts not corresponding to the amounts of the bank withdrawals—

established merely that the Victim was innocently doting on his girlfriend. Id.

at 34-35. In other words, she claims that the bank withdrawals and the cable

bill payment and furniture purchase were “two separate and distinct courses

of action that had no bearing on each other,” and the payments and purchases

did not make any “fact in connection with the bank withdrawals more or less

probable.” Id. at 36. She asserts that this evidence unfairly prejudiced her

because it reinforced society’s bias against younger women who date older

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men, merely confirming the jury’s predisposition to believe that this made her

a bad person. Id. at 35.

“When reviewing a trial court’s denial of a motion in limine, this Court

applies an [ ] abuse of discretion standard of review.” Commonwealth v.

Schley, 136 A.3d 511, 514 (Pa. Super. 2016). “An abuse of discretion will

not be found based on a mere error of judgment, but rather exists where the

court has reached a conclusion which overrides or misapplies the law, or where

the judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will.” Id. (citation omitted).

Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in

determining the action. Pa.R.E. 401; Commonwealth v. Serge, 896 A.2d

1170, 1177 (Pa. 2006). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402.

Pennsylvania Rule of Evidence 404(b) prohibits evidence of a

defendant’s prior acts “to prove a person’s character” or demonstrate “that on

a particular occasion the person acted in accordance with the character.”

Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that prior acts

evidence “may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Pa.R.E. 404(b)(2). “In a criminal case, this

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evidence is admissible only if the probative value of the evidence outweighs

its potential for unfair prejudice.” Pa.R.E. 404(b)(2).

Also known as the “complete story” exception, Rule 404(b) permits the

admission of evidence of other acts “to complete the story of the crime on trial

by providing its immediate context of happenings near in time and place.”

Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). The court is not

“required to sanitize the trial to eliminate all unpleasant facts from the jury’s

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses for

which the defendant is charged[.]” Id. at 501.

In the instant case, the Commonwealth sought to introduce evidence

that the Victim made a large furniture purchase for Appellant and paid her

outstanding cable bill in anticipation of her defense and as part of the totality

of the relationship between Appellant and the Victim. N.T., 6/17/19, at 10-

11, 20-22. The trial court agreed that its admission was permissible for this

purpose.

Following our review, we conclude that the trial court did not abuse its

discretion in admitting the contested evidence. The evidence was relevant to

show the complete financial relationship between Appellant and the Victim.

Moreover, the trial court properly concluded that the probative value in

providing the jury with this complete picture outweighed the potential

prejudice to Appellant, especially in light of the limiting instruction it provided

to the jury. See Commonwealth v. Roney, 79 A.3d 595, 640 (Pa. 2013)

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(explaining that reviewing courts presume that the jury has followed the trial

court’s instructions).13 Accordingly, the trial court did not abuse its discretion

in admitting this evidence and Appellant is, thus, not entitled to relief on this

claim.

Discretionary Aspects of Sentencing

In her final issue, Appellant claims that the trial court failure to consider

properly mitigating factors resulted in the imposition of an excessive sentence.

Appellant’s Brief at 38-39. Appellant complains that the court should have

weighed more heavily: (1) the deaths of her husband and son; (2) her

uncontrollable drug use; (2) her prior employment as a trauma nurse; (4) her

mental health diagnoses of depression, anxiety, and PTSD; and (5) her close

relationship with her daughters and grandchildren. Id. Appellant concedes

that her sentence is within the standard range, albeit at the top. Id. at 38.

Last, Appellant asserts that the trial court did not place sufficient reasons on

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13 In its closing argument, the Commonwealth informed the jury that it was
not to consider the evidence “as thefts,” but rather to understand the “entire
financial picture between the two.” N.T., 6/25/19, at 242. The trial court also
gave a limiting instruction to the jury during its charge, stating:

[D]uring the course of this trial you heard evidence regarding the
purchase of furniture at Unclaimed Freight and also an unpaid
invoice from Comcast. You’re only to consider this evidence for
one purpose, and one purpose only, and that is to consider it to
complete the story of the relationship between [the Victim] and
[Appellant]. You are not to consider this evidence as part of the
alleged theft as averred by the Commonwealth.

Id. at 263.

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the record explaining why it found “cause” to impose a mandatory minimum

sentence for her Theft by Deception conviction. Id. at 39. These issues

challenge the discretionary aspects of sentencing.

Challenges to the discretionary aspects of sentencing are not

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

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief sufficiently addresses the challenge in a statement included

pursuant to 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. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

Appellant has complied with the first requirement by filing a timely

notice of appeal.

With respect to the second requirement, our review of Appellant’s Post-

Sentence Motion indicates that she did not raise a claim that the court did not

place adequate reasons on the record supporting its imposition of a mandatory

minimum sentence. Thus, the latter claim is waived. See Commonwealth

v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015) (noting that the trial court

must be given the opportunity to reconsider its sentence either at sentencing

or in a post-sentence motion). See, e.g., Commonwealth v. Mann, 820

A.2d 788, 793-94 (Pa. Super. 2003) (holding that defendant waived

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discretionary aspects of sentencing claim regarding sentencing court’s failure

to state the reasons for his sentence on the record where defendant filed a

post-sentence motion, but only argued that his sentence was unduly severe

and the trial court abused its discretion under the sentencing code).

Appellant did, however, preserve her claim that the court failed to

consider mitigating factors by raising this issue in her Post-Sentence Motion

and including it in a statement pursuant to Pa.R.A.P. 2119(f). Thus, we

proceed to address whether Appellant presents a substantial question.

Whether an appellant has raised a substantial question regarding

discretionary sentencing is determined on a case-by-case basis.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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.” Id. (citation and

quotation omitted).

Claims that the sentencing court did not adequately consider mitigating

factors generally do not raise a substantial question. Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). See also Commonwealth v.

Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en banc) (explaining that

“an allegation that the sentencing court failed to consider or did not

adequately consider various factors is, in effect a request for this court to

substitute its judgment for that of the lower court in fashioning appellant’s

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sentence . . . [and] does not raise a substantial question that the sentence

imposed was in fact inappropriate.”); Commonwealth v. Cannon, 954 A.2d

1222, 1228–29 (Pa. Super. 2008) (finding no substantial question raised by a

claim that the trial court failed to consider the defendant’s rehabilitative

needs, age, and educational background); Commonwealth v. Coolbaugh,

770 A.2d 788, 792-93 (Pa. Super. 2001) (finding no substantial question

raised by a claim that the probation revocation sentence failed to take into

consideration the defendant’s rehabilitative needs and was manifestly

excessive where sentence was within statutory guidelines and within

sentencing guidelines); Commonwealth v. Coss, 695 A.2d 831, 833-34 (Pa.

Super. 1997) (holding that, when the sentence imposed falls within the

statutory limits, an appellant’s claim that a sentence is manifestly excessive

fails to raise a substantial question).

Applying the above precedent, we conclude that Appellant’s request—

that the court weigh her various unfortunate personal circumstances

differently—does not raise a substantial question. She has, thus, failed to

invoke the jurisdiction of this Court.

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Conclusion

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2020

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