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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD FAHEEM MCDANIELS :
:
Appellant : No. 2369 EDA 2021
Appeal from the Judgment of Sentence Entered June 4, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000062-2019
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 7, 2022
Ronald Faheem McDaniels appeals, nunc pro tunc, from the judgment
of sentence imposed following his convictions for one count each of possession
of a firearm with an altered manufacturer’s number, receiving stolen property,
and possession with intent to deliver cocaine (“PWID”), and three counts of
criminal conspiracy.1 On appeal, McDaniels challenges the sufficiency and
weight of the evidence supporting his convictions and raises a discretionary
aspects of sentencing claim. Following careful review, we affirm.
In October 2018, Pottstown Police officers used two confidential
informants to conduct four controlled drug buys from a home located on
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 6110.2(a), 3925(a), 903; 35 P.S. § 780-113(a)(30).
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Lincoln Avenue in Pottstown, Montgomery County, Pennsylvania. See N.T.
(Jury Trial), 3/3/20, at 88-90. The confidential informants contacted either
Jean Gross or McDaniels’s brother, Jamar, to arrange the sales. See id. at 90,
98, 100. The confidential informants were searched before and after the buys
and were provided with recorded cash to complete the transaction. See id. at
92-94, 96. Each controlled buy produced crack cocaine. See id. at 94, 99-
102.
Based on information gleaned from their investigation and the series of
controlled buys, police obtained a search warrant for the house. A Montgomery
County SWAT team executed the nighttime search warrant on November 2,
2018. See id. at 25-26. The SWAT team located four individuals in the house—
McDaniels, Jamar, another man named Kysim Gardner, and McDaniels’s minor
son. See id. at 28. Glen Michael Shirey, Jr., the SWAT tactical team leader,
identified McDaniels as one of those individuals during trial. See id. at 28-29.
After the residence was cleared, Sergeant Edward Kropp, Jr. (“Sgt.
Kropp”), and other officers began the search. In the kitchen, police recovered
a small bag containing 0.33 grams of crack cocaine; a gun case; a gun holster;
empty vials; a bottle containing caffeine supplements; a bag containing
packaging materials (Ziploc bags, empty yellow vials, and clear capsules); a
bottle of mannitol; and a black vest, one pocket of which contained cash and
a key. See id. at 39-51. The second pocket of the vest contained a cigarette
box, which held an identification card, an Access card, and an insurance card
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for Jamar,2 as well as vials containing 0.88 grams of cocaine and N-
Ethylpentylone. See id. at 53.
In the dining room, police recovered two Ziploc bags, one of which had
white residue; a black bag containing a gold watch, clear capsules, and empty
yellow vials; plastic containers holding cocaine and N-Ethylpentylone; and a
silver box containing several plastic bags and one vial of cocaine. See id. at
56-62. Additionally, police found two digital scales, both of which tested
positive for cocaine residue, and two gun cases. See id. at 62, 111. Cash,
empty vials, multiple vials containing cocaine, plastic containers with 20.05
grams of cocaine and N-Ethylpentylone, a razor blade, and a straw were
discovered inside one of the gun cases. See id. at 63-65. The second gun
case contained a loaded magazine. See id. at 65-66.
From the living room, police recovered two cell phones; a black mask;
a blue bag containing a Zoraki pistol with an extended magazine; cigarette
packs holding a razor, packaging materials, and a Sprint receipt for the phone
number (XXX) XXX-1135; and a loaded .40 caliber Ruger pistol with a
scratched serial number. See id. at 71-81.
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2 McDaniels was tried jointly with co-defendant Jamar. Jamar was convicted
of one count each of PWID, possession of a firearm with an altered
manufacturer’s number, and criminal use of a communication facility, and
three counts of conspiracy. The trial court sentenced Jamar to 10 to 20 years
in prison. In Jamar’s direct appeal, this Court affirmed Jamar’s judgment of
sentence. See Commonwealth v. McDaniels, 258 A.3d 543 (Pa. Super. filed
June 22, 2021) (unpublished memorandum).
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Pottstown Borough Police Officer Brett Cortis (“Officer Cortis”) was
involved with the search of the second floor of the house. In the south
bedroom, police recovered approximately $2,400.00 in cash and identification
and debit cards for Jamar, hidden in a sock; a plastic bag containing 14.32
grams of cocaine; a duffel bag holding two cell phones, mail addressed to
Jamar at the Lincoln Avenue address, and a box of 0.40 caliber ammunition;
and paperwork indicating Gardner had borrowed $1,600.00 from McDaniels.
See id. at 179-88.
In the north bedroom, police found two loaded handguns (a Taurus .40
caliber and a Glock 27),3 two rounds of 0.40 caliber ammunition, 2.93 grams
of marijuana, and yellow vials, all sitting on top of an ottoman. See id. at
189-96. From inside the ottoman, police recovered a cigar box containing a
sales ledger, clear glassine bags, a razor, a straw, a yellow container with
cocaine, two clear bags filled with 117.84 grams of cocaine, and various
documents. See id. at 197-98, 200-01. Significantly, the documents included
a billing statement from the Social Security Administration addressed to
McDaniels at the Lincoln Avenue address and McDaniels’s birth certificate. See
id. at 198-99. Police also recovered $4,667.00 in cash from a sock stuffed into
the pocket of a pair of jeans found on the floor, and $20.00 matching the pre-
recorded money from the controlled buy. See id. at 202-04. In the second
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3During trial, the parties stipulated that the Glock 27 had been reported stolen
by its owner on October 29, 2018. See N.T. (Jury Trial), 3/5/20, at 77.
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pocket of the jeans, police recovered $667.00 in cash. See id. at 204. Further,
in a nightstand, police found a cell phone, McDaniel’s state-issued
identification card identifying his home address as the location being searched,
boxes of 9-millimeter ammunition, a ledger for narcotics sales, and a pipe
used for smoking marijuana. See id. at 204-07. Two additional boxes of
ammunition were found in the room, one containing .40 caliber rounds and a
second box with an assortment of ammunition. See id. at 208. In the closet
of the north bedroom, police found small, clear plastic bags; glassine bags
commonly used in narcotics packaging; paperwork including traffic citations
for McDaniels and a utility bill, each identifying the Lincoln Avenue address; a
safe; a 9-millimeter magazine; and a Smith & Wesson 9-millimeter handgun
under the bed. See id. at 209-15.
Following a jury trial, McDaniels was convicted of the above-mentioned
offenses. The trial court deferred sentencing for preparation of a pre-sentence
investigation report (“PSI”). On June 4, 2020, the trial court sentenced
McDaniels to 5 to 10 years in prison, with credit for time served, for his PWID
conviction; a consecutive prison term of three to six years for his conviction
for possession of a firearm with an altered manufacturer’s number; and a
consecutive term of one to two years in prison for his criminal conspiracy for
criminal use of a communications facility conviction. For the remaining
convictions, the trial court entered a determination of guilty without further
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penalty. McDaniels filed a notice of appeal on July 16, 2020, and this Court
quashed the appeal as untimely filed. See Order, 4/21/21.
McDaniels subsequently filed a petition for relief pursuant to the Post
Conviction Relief Act (“PCRA”), seeking reinstatement of his rights to file a
post-sentence motion and direct appeal. The PCRA court granted the petition.
McDaniels filed a post-sentence motion challenging the weight of the evidence
and the discretionary aspects of his sentence. The trial court denied
McDaniels’s post-sentence motion, and this nunc pro tunc appeal followed.
McDaniels raises three challenges to the sufficiency of the evidence
presented at trial. We review challenges to the sufficiency of the evidence with
great deference to the credibility determinations of the fact finder:
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 finder 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.
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Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en
banc) (citation omitted).
In his first claim, McDaniels asserts there was insufficient evidence
supporting his conviction of criminal conspiracy – PWID. See Appellant’s Brief
at 17. McDaniels concedes the evidence was sufficient to establish PWID under
a theory of constructive possession, based on “testimony that more than 100
grams of cocaine was discovered in a bedroom that also contained his personal
effects … in light of other evidence that packaging materials, a drug sale
ledger, and more than $5,000 was also found among his personal
possessions.” Id. at 20. He argues, however, that the Commonwealth failed
to establish that he conspired with Jamar or Gross to sell drugs. See id. at
20-21. McDaniels claims the evidence indicates the confidential informants
arranged to purchase cocaine by contacting only Jamar or Gross. See id. at
21. Further, McDaniels points out that “when Jamar [] sent [McDaniels] a text
message asking [McDaniels] to call him to arrange a drug sale, [McDaniels]
did not respond to the text message.” Id. at 22 (citation to record omitted).
To define the crime of conspiracy to commit PWID, we must first define
the crime of PWID. The Controlled Substance, Drug, Device and Cosmetic Act
prohibits, inter alia, “possession with intent to manufacture or deliver[] a
controlled substance by a person not registered under this act….” 35 P.S. §
780-113(a)(30). “[P]ossession with intent to deliver can be inferred from the
quantity of the drugs possessed along with the other surrounding
circumstances.” Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super.
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2005) (citation omitted). In the absence of direct evidence of possession (i.e.,
finding a controlled substance on the defendant’s person), the Commonwealth
may establish constructive possession, which “requires proof of the ability to
exercise conscious dominion over the substance, the power to control the
contraband, and the intent to exercise such control.” Commonwealth v.
Perez, 931 A.2d 703, 708 (Pa. Super. 2007).
Therefore, to prove the crime of conspiracy to commit PWID, the
Commonwealth was required to prove that McDaniels had an agreement with
either Jamar or Gross to commit the crime of PWID and that one of the
conspirators acted to further the commission of PWID:
(a) Definition of conspiracy.--A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
***
(e) Overt act.--No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by
a person with whom he conspired.
18 Pa.C.S.A. § 903. “Simplified, this requires proof of three elements: 1) an
agreement, 2) shared criminal intent, and 3) an overt act.” Commonwealth
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v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018). A defendant may be liable
for overt acts committed by any of the co-conspirators so long as the evidence
establishes the defendant intentionally entered a conspiratorial agreement.
See Commonwealth v. Rosario, 248 A.3d 599, 611 (Pa. Super. 2021).
Further,
[d]irect evidence of the defendant’s criminal intent or the
conspiratorial agreement, however, is rarely available.
Consequently, the defendant’s intent as well as the agreement is
almost always proven through circumstantial evidence, such as by
the relations, conduct or circumstances of the parties or overt acts
on the part of the con-conspirators. Once the trier of fact finds
that there was an agreement and the defendant intentionally
entered into the agreement, the defendant may be liable for the
overt acts committed in furtherance of the conspiracy regardless
of which co-conspirator committed the act.
Id. (citation omitted); see also Perez, 931 A.2d at 708 (circumstances
establishing conspiracy may include “association between alleged
conspirators, knowledge of the commission of the crime, presence at the scene
of the crime, and/or participation in the object of the conspiracy”).
Here, Officer Cortis testified that on October 17, 2018, he observed
McDaniels standing outside the residence with Jamar and Gross before the
confidential informant arrived by vehicle. See N.T. (Jury Trial), 3/3/20, at
175-76. The confidential informant met with Jamar outside then accompanied
him inside the house. See id. at 176. The pair came back outside, and Jamar
stood with McDaniels and Gross after the informant drove away. See id.
Officer Cortis also testified that he applied for and obtained search
warrants for numerous cell phones that were found at the Lincoln Avenue
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address. See N.T. (Jury Trial), 3/5/20, at 27. The iPhone found in the living
room, with the phone number (XXX) XXX-1135 was identified as Jamar’s, due
to the confidential informant using that number to communicate with Jamar
prior to the controlled buys. See id. at 32-33. Messages received on Jamar’s
phone from the phone number associated with Gross relate to arranging drug
sales, and some reference “R.” See, e.g., id. at 47 (“Let R know that Alfred
is coming by for a spot till tomorrow.”), 48 (“Yo, answer the phone or call me
back. R’s phone is off. I need somebody. I’ve got somebody coming by for
60.”). Jamar’s phone also revealed messages to the phone number McDaniels
identified as his own on the vital statistics form he had submitted to the court.
See id. at 51 (“Yo, bro, call me. A white old lady about to pull up for 2 H.”).
A text message from Jamar to an apparent client stated, “Not at the house
right now, but you can see my brother.” Id. at 43.
Additionally, Robert Larkin, the owner of the Lincoln Avenue property,
identified McDaniels as one of the tenants. See id. at 12-13. Larkin testified
that McDaniels, Gross, and Gross’s mother had signed a lease for the property
in 2017. See id. at 13. According to Larkin, Gross asked to rent an apartment
in another one of his properties in late October 2018. See id. at 15-16.
Moreover, drugs, packaging materials, and firearms were found
throughout several common areas in the house. See generally N.T. (Jury
Trial), 3/3/20, at 39-81. Officer Cortis also testified that a pre-recorded $20
bill that had been used during the controlled buys was found amongst the
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significant amount of cash discovered in a pair of jeans on the floor of
McDaniels’s bedroom. See id. at 202-04.
The above evidence, viewed in the light most favorable to the
Commonwealth as the verdict winner, was sufficient to sustain McDaniels’s
conviction for criminal conspiracy – PWID. The evidence reflects that Gross
sent customers to the Lincoln Avenue address, where McDaniels lived (and
where Gross had previously lived with him), to purchase drugs. Messages
between Gross and Jamar, and between Jamar and McDaniels, also implicate
McDaniels’s involvement. Further, as the trial court noted, the presence of
$20.00 of pre-recorded money from a controlled buy, “which was arranged by
Jean Gross, showed that [McDaniels] and his co[-]conspirators shared
proceeds from each other’s drug sales as part of their ongoing conspiracy.”
Trial Court Opinion, 1/6/11, at 15. Even in absence of direct evidence of
McDaniels’s participation in the controlled buys, evidence of McDaniels’s
shared criminal intent while his co-conspirators committed the overt acts
sufficiently establishes his intentional entry into the agreement. See Rosario,
248 A.3d at 611. Accordingly, McDaniels is not entitled to relief on this claim.
In his second claim, McDaniels contends the evidence presented at trial
was insufficient to sustain his convictions for possession of a firearm with an
altered manufacturer’s number and criminal conspiracy to commit same. See
Appellant’s Brief at 27. McDaniels asserts the Commonwealth failed to
establish his constructive possession of the firearm with an altered
manufacturer’s number, a Ruger pistol, “which was secreted away in a drawer
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in an end table in the living room.” Id. at 29. According to McDaniels, there
was no evidence specifically tying him to the weapon. See id. Alternatively,
McDaniels argues he lacked the requisite mens rea to support these
convictions. See id. at 30. In particular, he claims the evidence does not
support a finding that McDaniels had actual knowledge that the serial number
had been obscured. See id. at 32-33.4
The Uniform Firearms Act provides that “[n]o person shall possess a
firearm which has had the manufacturer’s number integral to the frame or
receiver altered, changed, removed or obliterated.” See 18 Pa.C.S.A. §
6110.2(a). The Commonwealth must establish “that a defendant acted
intentionally, knowingly, or recklessly with respect to the obliterated
manufacturer’s number on the firearm.” Commonwealth v. Jones, 172 A.3d
1139, 1145 (Pa. Super. 2017).
Further, the Commonwealth may establish possession under a theory of
constructive possession. See Commonwealth v. Smith, 146 A.3d 257, 263
(Pa. Super. 2016).
Constructive possession is an inference arising from a set of facts
that possession of the contraband was more likely than not.
Constructive possession may be proven by circumstantial
evidence and the requisite knowledge and intent may be inferred
from examination of the totality of the circumstances. Moreover,
we review circumstantial evidence under the same standard as
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4 McDaniels does not separately address his conviction for criminal conspiracy
to possess a firearm with an altered manufacturer’s number. Rather, he relies
on the arguments made in support of his first claim challenging his conviction
for conspiracy to commit PWID.
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direct evidence, i.e., that a decision by the trial court will be
affirmed so long as the combination of evidence links the accused
to the crime beyond a reasonable doubt.
Id. (internal citations, quotation marks, and paragraph break omitted).
We conclude the evidence presented at trial, viewed in the light most
favorable to the Commonwealth as the verdict winner, was sufficient to
establish McDaniels had knowledge of the firearm’s existence and location in
the house5 and the intention to possess it. Sgt. Kropp testified at trial that the
Ruger pistol with an altered manufacturer’s number was discovered inside an
end table in the living room. See N.T. (Jury Trial), 3/3/20, at 79. Sgt. Kropp
testified the serial number had been “scratched up.” Id. at 80; see also
Exhibits C-57, C-58, C-59, C-60, C-61, C-98 (depicting the Ruger and the
scratching on the serial number). The Commonwealth also introduced into
evidence photographs recovered from Jamar’s cell phone, one of which
showed McDaniels standing in the living room of the house, holding a handgun
in his hand, and carrying another firearm in his belt. See N.T. (Jury Trial),
3/5/20, at 51-55; see also Exhibit C-208. Therefore, the circumstantial
evidence was sufficient to establish McDaniels constructively possessed the
firearm with an altered manufacturer’s number. See Smith, 146 A.3d at 263
(concluding the Commonwealth presented sufficient evidence to establish the
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5 Significantly, McDaniels does not contest that he resided at the Lincoln
Avenue address. In fact, McDaniels signed a vital statistics form, which was
submitted to the court, which confirmed his address. See N.T. (Jury Trial),
3/3/20, at 108.
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appellant’s constructive possession of a firearm with an altered manufacturer’s
number, where other items recovered in the same area belonged to the
appellant and identified his address as the one searched, and the appellant
had fled to the room where the firearm had been recovered). Accordingly, this
claim is without merit.
Next, McDaniels asserts there was insufficient evidence supporting his
conviction for criminal conspiracy – criminal use of a communication facility.
See Appellant’s Brief at 34. McDaniels claims the evidence showed that Jamar
and Gross communicated regularly to arrange drug sales from the Lincoln
Avenue address. See id. at 35. However, McDaniels avers, the analysis of his
cell phone revealed only one incoming text from Jamar referencing drug sales,
and there was no evidence that McDaniels responded to the message. See id.
at 35-36.
We disagree with McDaniels’s legal conclusions as well as his description
of the record. First, we conclude that the single text, by itself, would be
sufficient to allow a fact-finder to infer McDaniels used his phone to facilitate
the conspiracy to sell narcotics. Further, we note that this text message is not
the only evidence capable of supporting a finding that McDaniels utilized his
phone in furtherance of the conspiracy. Gross sent a text message to Jamar
expressing her frustration that McDaniels was not answering her calls because
she needed someone to meet customers at the house. This evidence would
permit a fact-finder to infer that the conspirators coordinate their efforts
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through phone calls to each other. Given these conclusions, McDaniels’s third
claim merits no relief.
In his fourth claim, McDaniels argues the verdict was against the weight
of the evidence. See Appellant’s Brief at 37. McDaniels challenges the
credibility of Officer Cortis’s testimony. See id. at 39-40. In particular,
McDaniels asserts that
[i]t simply defies logic and strains common sense to believe that
[McDaniels], a supposedly sophisticated drug dealer accused of
trafficking significant quantities of cocaine, would keep his birth
certificate and state-issued identification card next to his drugs
and trafficking supplies, especially where this testimony appeared
tailored to remedy a weakness in the Commonwealth’s case by
establishing [McDaniels’s] ownership of the drugs.
Id. at 40.6
A weight of the evidence claim is addressed to the discretion of the trial
court:
The weight of the evidence is a matter 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. A new trial is not
warranted because of a mere conflict in the testimony and must
have a stronger foundation than a reassessment of the credibility
of witnesses. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice. On appeal, our purview is extremely
limited and is confined to whether the trial court abused its
discretion in finding that the jury verdict did not shock one’s
conscience. Thus, appellate review of a weight claim consists of a
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6 We observe that McDaniels conflates the distinct concepts of weight and
sufficiency of the evidence in parts of his argument by relying on his prior
argument challenging the sufficiency of the evidence supporting his conspiracy
to commit PWID conviction.
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review of the trial court’s exercise of discretion, not a review of the
underlying question of whether the verdict is against the weight of
the evidence. An appellate court may not reverse a verdict unless
it is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Diaz, 152 A.3d 1040, 1046 (Pa. Super. 2016) (citation
and internal quotation marks omitted). “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….” Commonwealth
v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).
McDaniels fails to specify which conviction or convictions he believes is
against the weight of the evidence. However, as the trial court noted,
McDaniels’s argument for this issue suggests a challenge to his PWID
conviction. The trial court concluded McDaniels’s PWID conviction is not
against the weight of the evidence considering the large quantity of cocaine
recovered from his bedroom along with his birth certificate and state
identification, firearms, cash, drug sales ledgers, and cutting and packaging
materials. See Trial Court Opinion, 1/6/22, at 18. The trial court also noted
that drugs and related paraphernalia were discovered throughout the other
rooms of the house. See id. While we agree that it is surprising that
McDaniels’s birth certificate was found with narcotics, this does not necessitate
a conclusion that this evidence shocks the judicial conscience. To the contrary,
people, and especially criminals, often make decisions that look objectively
ludicrous with the benefit of hindsight.
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Upon review, we conclude the evidence adequately supports the trial
court’s determination, and we discern no manifest abuse of discretion by the
trial court in reaching this conclusion. See Diaz, 152 A.3d at 1046. We cannot
state that the trial court abused its discretion in concluding the verdict did not
shock its conscience. See id. Therefore, McDaniels is not entitled to relief on
this claim.
Finally, McDaniels claims the trial court relied too heavily on the severity
of the offense and imposed a manifestly excessive aggregate sentence without
proper consideration of certain mitigating factors. See Appellant’s Brief at 42.
“A challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(citation omitted). Rather, an appellant must invoke this Court’s jurisdiction.
See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(citation omitted).
[W]e conduct a four-part analysis to determine: (1) whether
the 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 the 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).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
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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.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, McDaniels preserved his claim in a nunc pro tunc post-sentence
motion and filed a nunc pro tunc notice of appeal. McDaniels also included a
separate Rule 2119(f) statement in his appellate brief, asserting the trial court
imposed an unduly harsh sentence based exclusively on the seriousness of
the crime, without consideration of relevant mitigating factors. See
Appellant’s Brief at 41-42. We conclude McDaniels raised a substantial
question for our review, and we proceed to the merits of his sentencing
challenge. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc) (explaining that “an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.” (citation and quotation marks omitted)).
We review discretionary sentencing challenges with great deference to
the sentencing court:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted).
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“In every case in which the court imposes a sentence for a felony … the
court shall make as a part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon,
812 A.2d 617, 620-21 (Pa. 2002) (plurality). “In considering these factors,
the court should refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (citation omitted). The trial
court must also consider the sentencing guidelines. See 42 Pa.C.S.A. §
9721(b); see also Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.
Super. 2008) (stating that “[w]hen imposing a sentence, the [trial] court is
required to consider the sentence ranges set forth in the Sentencing
Guidelines….”). Moreover, where, as here, the trial court has the benefit of a
PSI, “we can assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Moury, 992 A.2d at 171 (internal quotation
marks and citation omitted).
McDaniels argues that his aggregate sentence of nine to eighteen years
of imprisonment is excessive when compared to 48- to 66-month standard
range sentence suggested by the guidelines for his most serious conviction.
See Appellant’s Brief at 42. He contends the court “relied solely on the
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seriousness of appellant’s crime while ignoring substantial evidence that would
have supported the imposition of a mitigated sentence.” See id. at 43.
Initially, each of the sentences imposed are within the standard range
of the sentencing guidelines based upon McDaniels’s prior record score of two
and the applicable offense gravity scores. See 204 Pa. Code § 303.16(a).
Therefore, we may only vacate McDaniels’s sentence if “the case involves
circumstances where the application of the guidelines would be clearly
unreasonable.” 42 Pa.C.S.A. § 9781(c)(2); see also Moury, 992 A.2d at 171.
During the sentencing hearing, McDaniels’s counsel argued that
McDaniels’s criminal history was relatively minimal, with only one prior
offense. See N.T. (Sentencing), 6/4/20, at 7. Counsel also explained that
McDaniels had a difficult childhood and a “rough upbringing.” See id. at 8.
The trial court, prior to imposing the sentence, explained that it had fully
considered the PSI and the sentencing guidelines. See id. at 4, 14. The court
highlighted the significant amount of cocaine (approximately 186 grams in
total) recovered from the Lincoln Avenue address, as well as the number of
firearms, one of which had an altered manufacturer’s number. See id. at 15.
Further, the trial court acknowledged the mitigating factors raised by
McDaniels’s counsel. See id. The record therefore reflects that the trial court
was aware of all relevant sentencing factors, and we cannot conclude that
McDaniels has establish his standard-range sentence was unreasonable under
these circumstances.
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Based upon the foregoing, we affirm McDaniels’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2022
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