Com. v. Poindexter, D.

J-S46020-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAVID DWAYNE POINDEXTER :

:

Appellant : No. 696 WDA 2025

Appeal from the Judgment of Sentence Entered May 7, 2025

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0001466-2023

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAVID DWAYNE POINDEXTER :

:

Appellant : No. 858 WDA 2025

Appeal from the Judgment of Sentence Entered May 17, 2025

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0003385-2023

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED: JUNE 2, 2026

Appellant David Dwayne Poindexter appeals from the judgment of

sentence imposed after he pled guilty to aggravated assault – deadly weapon

and conspiracy at Docket No. 1466-2023 and involuntary manslaughter and

recklessly endangering another person (REAP)1 at Docket No. 3385-2023. On

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1 18 Pa.C.S. §§ 2702(a)(4), 903, 2504(a)), and 2705, respectively.

J-S46020-25

appeal, Appellant challenges the discretionary aspects of his sentence. We

affirm.

By way of background, Appellant pled guilty to the above-referenced

offenses on May 7, 2025. That same day, after Appellant waived a

presentence investigation (PSI) report, the trial court sentenced Appellant to

an aggregate term of thirty-three to ninety-six months’ incarceration followed

by five years’ probation. Specifically, at Docket No. 1466-2023, the trial court

sentenced Appellant to eighteen to thirty-six months of incarceration and a

consecutive term of three years’ probation for aggravated assault, and a

concurrent term of three years’ probation for conspiracy. At Docket No. 3385-

2023, the trial court sentenced Appellant to fifteen to sixty months of

incarceration for involuntary manslaughter and a consecutive term of two

years’ probation for REAP. All of Appellant’s minimum sentences were within

the mitigated range of the Sentencing Guidelines.2,3

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2 204 Pa. Code § 303.16(a).

3 At the time of sentencing, Appellant’s prior record score (PRS) was a five.

The offense gravity score (OGS) for aggravated assault – deadly weapon and

conspiracy were both an eight. Therefore, the standard-range minimum

sentence for both offenses was twenty-seven to thirty-three months, plus or

minus nine months for mitigating or aggravating circumstances.

The OGS for voluntary manslaughter was a six, which carries a standard-range

minimum sentence of twenty-one to twenty-seven months’ incarceration, plus

or minus six months for aggravating or mitigation circumstances.

(Footnote Continued Next Page)

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Appellant filed a timely post-sentence motion, which the trial court

denied. Appellant subsequently filed a notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion

addressing Appellant’s claim.

On appeal, Appellant raises the following issue for review: “Did the trial

court abuse its discretion when it sentenced [Appellant] to a period of

incarceration of thirty-three to ninety-six months followed by five years of

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

Specifically, with respect to Docket No. 3385-2023, Appellant argues

that his sentence was “clearly unreasonable,” as it was inconsistent with his

rehabilitative needs. Id. at 11. Initially, Appellant acknowledges that his

minimum sentence was within the mitigated range and that the Sentencing

Guidelines only set forth the range for a defendant’s minimum sentence. Id.

at 16. However, Appellant contends that his maximum sentence, when

“divided by two, corresponds to an aggravated-range sentence of

incarceration” and that because “[n]othing in the record or in the trial court’s

opinion justified the imposition of a maximum sentence” which placed him in

the aggravated-range of the sentencing guidelines. Id. Appellant also argues

that the “issue is further compounded by the [t]rial [c]ourt’s decision to

sentence consecutively at both cases,” which resulted in an aggregate

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Finally, the OGS for REAP was a three, which carries a standard-range

minimum sentence of six to sixteen months, plus or minus three months for

aggravated or mitigating circumstances.

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sentence that was clearly unreasonable under the circumstances of both

cases. Id. at 17.

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

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such

claims, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved

his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.

2119(f)] concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of

sentence; and (4) whether the concise statement raises a

substantial question that the sentence is inappropriate under the

sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations

omitted).

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

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

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

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,

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

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

raised for the first time on appeal”).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d

1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question

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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.” Commonwealth v. Grays, 167 A.3d

793, 816 (Pa. Super. 2017) (citation omitted).

Here, the record reflects that Appellant preserved a discretionary

sentencing issue by raising it in his post-sentence motion, filing a timely notice

of appeal and a court-ordered Rule 1925(b) statement, and including a Rule

2119(f) statement in his brief. See Corley, 31 A.3d at 296. Further,

Appellant’s claim raises a substantial question for our review. See

Commonwealth v. Swope, 123 A.3d 333, 339-40 (Pa. Super. 2015)

(concluding that the appellant raised a substantial question raised where he

challenged consecutive sentences were excessive and claimed court failed to

consider rehabilitative needs and mitigating factors); Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (explaining that a claim that a

sentence was excessive raised in conjunction with a claim that the trial court

failed to consider mitigating factors raises substantial question).

Our well-settled standard of review is as follows:

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.

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Additionally, our review of the discretionary aspects of a sentence

is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d). Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand

the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the

sentencing guidelines but applied the guidelines

erroneously;

(2) the sentencing court sentenced within the sentencing

guidelines but the case involves circumstances where the

application of the guidelines would be clearly

unreasonable; or

(3) the sentencing court sentenced outside the

sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the

sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the

defendant, including any presentence investigation [(PSI)].

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Raven, 97 A.3d at 1253-54 (citation omitted).

“When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,

[the] gravity of offense in relation to impact on [the] victim and community,

and [the] rehabilitative needs of the defendant.” Commonwealth v. Fullin,

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892 A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting

altered). “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) (citations

omitted), overruled on other grounds by Commonwealth v. Seals, --- A.3d

---, 2026 WL 739101 (Pa. Super. filed Feb. 17, 2025) (en banc).

Additionally, the trial court “must consider the sentencing guidelines.”

Fullin, 892 A.2d at 848 (citation omitted); see also 204 Pa. Code § 303.9(e)

(reflecting that the numbers used for the ranges set forth in the sentencing

guidelines reflect the minimum sentence for each offense); Commonwealth

v. W. Brown, 587 A.2d 4, 5-6 (Pa. Super. 1991) (explaining that by their

terms, the sentencing guidelines apply only to the minimum sentence imposed

by the trial court).

“Generally, Pennsylvania law affords the sentencing court discretion to

impose its sentence concurrently or consecutively to other sentences being

imposed at the same time or to sentences already imposed. [An a]ppellant is

not entitled to a ‘volume discount’ on his multiple convictions by the imposition

of concurrent sentences.” Commonwealth v. C. Brown, 249 A.3d 1206,

1216 (Pa. Super. 2021) (citations omitted and formatting altered).

The balancing of the sentencing factors is the sole province of the

sentencing court, which has the opportunity to observe the defendant and all

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witnesses firsthand. See Commonwealth v. Kurtz, 294 A.3d 509, 536 (Pa.

Super. 2023), affirmed, 348 A.3d 133 (Pa. 2025). In conducting appellate

review, this Court “cannot reweigh sentencing factors and impose judgment

in place of sentencing court where lower court was fully aware of all mitigating

factors.” Id. (citation omitted).

Here, at sentencing, the trial court acknowledged that Appellant

accepted responsibility for his crimes and agreed to cooperate with the

Commonwealth in their prosecution against his co-defendant. See N.T.

Sentencing Hr’g, 5/7/25, at 26. However, the trial court also noted that

Appellant’s PRS was a five and that he had already been on probation when

he committed the instant offenses. See id.

In its Rule 1925(a) opinion, the trial court explained:

When imposing a sentence, this court is required to consider,

among other things, the protection of the public, the gravity of the

offense in relation to the impact on the victims and community

and the rehabilitative needs of the defendant. 42 Pa.C.S. §

9721(b). Appellant’s mere unhappiness with his sentence does

not constitute grounds for relief. “Since the court more than

adequately considered the pertinent sentencing factors and

merely weighed them in a manner inconsistent with Appellant’s

desires, we find his [only] issue does not entitle him to relief.”

Commonwealth v. Dodge, 77 A.3d 1263, 1276 (Pa. Super.

2013). This court considered these statutory factors in sentencing

Appellant. On the involuntary manslaughter case, this court noted

that, in contrast to his codefendant, Appellant had a [PRS of five]

and was on probation at two cases when he committed this

offense.

This court noted at sentencing that Appellant accepted

responsibility for his actions and agreed to cooperate in the

prosecution of his co-defendant. These factors were given

considerable weight as this court sentenced in the mitigated range

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at the minimum. However, this court also noted that Appellant

remained on probation on cases from 2011 and 2013, which

suggested a poor history of supervision in the community. The

maximum sentence imposed of sixty months reflects this court’s

concern that a longer period of incarceration may be necessary to

fully rehabilitate Appellant. Taken together, this sentence gives

Appellant the opportunity to return to society relatively soon if he

commits to his efforts at rehabilitation and if he is unwilling or

unable to do so, the community shall remain protected for

extended period.

At the aggravated assault case, Appellant and an unidentified

individual who Appellant knows, beat up a person who has known

Appellant for fifty years. They broke his nose and his eye socket,

and they knocked out his teeth. Nonetheless, this court sentenced

Appellant in the mitigated range of the Sentencing Guidelines,

based on his taking responsibility for his conduct. “[W]here a

sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the

Sentencing Code.” Commonwealth v. Mowy, 992 A. 2d 162,

171 (Pa. Super. 2010). Mitigated range sentences would

presumably have even greater validity.

Trial Ct. Op., 8/4/25, at 4-5 (some formatting altered).

Following our review of the record, we discern no abuse of discretion by

the trial court. See Raven, 97 A.3d at 1253. As noted, the trial court

considered the required sentencing factors, including Appellant’s mitigating

factors, and ultimately imposed minimum sentences for each offense within

the mitigated range of the Sentencing Guidelines. N.T. Sentencing Hr’g,

5/7/25, at 26-27. We will not re-weigh the trial court’s consideration of the

relevant sentencing factors on appeal. See Kurtz, 294 A.3d at 536. Further,

we conclude that the trial court did not abuse its discretion in imposing

consecutive sentences, as it is well settled that defendants convicted of

multiple criminal offenses are not entitled to a volume discount by the

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imposition of concurrent sentences. See C. Brown, 249 A.3d at 1216.

Finally, to the extent Appellant claims that his maximum sentences placed him

in the aggravated range for sentencing purposes, we reiterate that the

Sentencing Guidelines reflect the recommendations for a defendant’s

minimum range sentence, and not the maximum. See 204 Pa. Code §

303.9(e); W. Brown, 587 A.2d at 5-6. Therefore, we have no basis to

conclude that Appellant’s sentence was clearly unreasonable. See Raven, 97

A.3d at 1253-54.

For these reasons, we conclude that Appellant is not entitled to relief.

Accordingly, we affirm.

Judgment of sentence affirmed. Jurisdiction relinquished.

DATE: 6/2/2026

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