Com. v. Williams, J.

J-A21037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JAMIL WILLIAMS :

:

Appellant : No. 2126 EDA 2022

Appeal from the Judgment of Sentence Entered May 26, 2022

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

No(s): CP-51-CR-0008261-2019

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 08, 2024

Appellant, Jamil Williams, appeals from the judgment of sentence of an

aggregate term of 28½ to 57 years’ incarceration, imposed after a jury

convicted him of aggravated assault, conspiracy, carrying a firearm without a

license, and related offenses. After careful review, we affirm.

Appellant sets forth the following facts, as pertinent to the issues he

raises herein:

On April 25, 2018, outside a corner store at Eighth and Diamond

Streets in Philadelphia, two individuals shot at Neil Gardner while

he was selling marijuana. Philadelphia police recovered video

from the scene. The video shows one shooter walk up and begin

firing while Mr. Gardner runs eastbound on Diamond Street.

(N.T.[,] 9/7/21[,] at 50). A second man then appears and fires

additional shots. Mr. Gardner testified that he recognized the first

shooter as a man by the nickname of Bucky, and that he did not

see the other shooter because he was already running away after

Bucky started firing. ([Id.] at 40-41). Mr. Gardner was not

injured, and police did not file charges against anyone at the time.

Over a year later, police charged [Appellant] as the second

shooter after Mr. Gardner identified him from a double-blind photo

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array. (N.T.[,] 9/8/21[,] at 50). Mr. Gardner and his attorney,

Gwen Callen, met with detectives on May 24, 2019. Mr. Gardner

was shown six photographs by Detective [Daniel] Flynn, and he

circled the photo of [Appellant] as a person he knew. However,

Mr. Gardner did not tell the detective that [Appellant] was the

shooter - he stated only that he was 100 percent certain that he

recognized the person in the photo. ([Id.] at 58; Certified Record

p. 252 (Trial Exhibit C13a - photo array)). After Detective Flynn

left the room, Detective [Sherie] Savoy entered the room.

Detective Savoy had prepared the photo array and knew the

identity of the suspect. Realizing that Mr. Gardner had not stated

that [Appellant] was one of the people who shot at him, she asked

Mr. Gardner directly, “these are the guys who did what?”, after

which Mr. Gardner replied, “they shot at me.” ([Id.] at 78; Trial

Exhibit C12 - video recording of photo array procedure).

At trial, Officer [Joseph] Goodwin was permitted to identify

[Appellant] as the second shooter in the video. The court allowed

this identification despite the fact that Officer Goodwin testified

that he had never talked face to face with [Appellant], never

arrested him, and had never before seen him at Eighth and

Diamond Streets. (N.T.[,] 9/7/21[,] at 58-59). Officer Goodwin

based his identification on “the bald head, the beard, the build,

[and] the clothing.” ([Id.] at 59). Similarly, at a pretrial hearing,

Officer Goodwin based his identification on the characteristics of

“a big husky guy with just a - just the size, the bald head,

everything like that.” (N.T.[,] 8/30/21[,] at 25). Officer Goodwin

conceded that there was nothing particular about the way

[Appellant] walks, he was not sure if [Appellant] had any visible

tattoos, and he did not know if [Appellant] was right- or left-

handed. (Id.)

Neil Gardner testified at trial that he knew [Appellant] in passing

from around the neighborhood. (N.T.[,] 9/8/21[,] at 7). He did

not identify [Appellant] as the second shooter, but said that he

saw [Appellant] on the corner of Eighth and Susquehanna Streets

after he ran from the shooting. ([Id.] at 11). On cross-

examination, Mr. Gardner acknowledged that he was originally

sentenced to 6 to 12 years in his own criminal case, but that

sentence was reduced to 4 to 10 years after he participated in the

photo array. ([Id.] at 36, 38). He stated that he told police at

the preliminary hearing and again before trial that [Appellant] was

not the shooter, and that no one had threatened him, coerced

him, or offered to pay him to say this. ([Id.] at 41-43).

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To explain why Mr. Gardner did not testify the way the prosecution

wished, the assistant district attorney read into the record a

statement made by Mr. Gardner’s attorney, Gwen Callan, at Mr.

Gardner’s sentencing proceeding. Despite repeated objections

from the defense, the trial court inexplicably allowed the

prosecutor to read into the record Ms. Callan’s argument from Mr.

Gardner’s sentencing, including the statement that Mr. Gardner

“specifically asked me not to call [his family]. He didn’t want it to

get out in the neighborhood that he’s cooperating for fear about

retaliation.” ([Id.] at 33).

During closing argument, the prosecutor compared [Appellant] to

the character Omar from the TV series The Wire. (N.T.[,]

9/9/21[,] at 13). In The Wire, Omar Little was a “stickup man”

who robbed drug dealers. The character was responsible for at

least five murders during the series.

https://thewire.fandom.com/wiki/Omar_Devon_Little (last

accessed Mar[.] 16, 2023).

Appellant’s Brief at 11-14 (some formatting altered).

At the close of trial, the jury convicted Appellant of aggravated assault

(18 Pa.C.S. § 2702(a)(1)), conspiracy to commit aggravated assault (18

Pa.C.S. § 903), possession of a firearm by a person prohibited (18 Pa.C.S. §

6105(a)(1)), carrying a firearm without a license (18 Pa.C.S. § 6106(a)(1)),

carrying a firearm in public in Philadelphia (18 Pa.C.S. § 6108), and possessing

an instrument of crime (18 Pa.C.S. § 907(a)). On May 26, 2022, the court

sentenced Appellant to the aggregate term set forth supra. He filed a timely

post-sentence motion, which was denied. Appellant then filed a timely notice

of appeal, and he complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The court filed

its Rule 1925(a) opinion on December 5, 2022.

Herein, Appellant states five issues for our review:

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I. Whether the trial court erred in failing to suppress the out-of-

court identification of [Appellant], because Detective Savoy

impermissibly suggested to the complaining witness that

[Appellant] was the shooter?

II. Whether the trial court erred in allowing Officer Goodwin to

offer opinion testimony at trial in which he identified [Appellant]

on video as the shooter, despite Officer Goodwin[’s] never having

met [Appellant] personally and offering only a general description

to compare [Appellant] to the shooter?

III. Whether the trial court erred in allowing the prosecutor to read

a statement by the attorney for the complaining witness into the

record at trial, when that statement, which argues that the

complainant was afraid of retaliation from [Appellant], was made

by the complainant’s attorney during the complainant’s

sentencing in an unrelated matter?

IV. Whether the trial court erred in denying the post-sentence

motion for a new trial because the prosecutor’s comments in

closing argument, including comparing [Appellant] to a multi-

murderer from the television show The Wire, impermissibly

prejudiced the jury to the extent that a new trial is required?

V. Whether the aggregate sentence of 28½ to 57 years is

excessive under the circumstances and unreasonably exceeds the

sentencing guidelines, which call for 84 to 102 months for

aggravated assault and 90 to 102 months for possession of a

firearm by a prohibited person?

Appellant’s Brief at 7-8.

Appellant first contends that the court erred by denying his pretrial

motion to suppress the out-of-court identification of Appellant made by Mr.

Gardner from a photographic array. Appellant insists that the “identification

procedure was unduly suggestive, and there was no subsequent identification

that could be deemed reliable.” Id. at 19. He stresses that the “array was

performed a year after the incident” and, although it “began as a double-blind

procedure administered by Detective Flynn, who did not know the suspect’s

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identity[,]” Mr. Gardner only stated that Appellant was the shooter after being

“asked a suggestive question by Detective Savoy[,]” who “had prepared the

photo array and knew the identity of the suspect.” Id. at 19-20. Appellant

argues that Detective Savoy’s question – “these are the guys who did what?”

– “was deliberately suggestive and designed to elicit the desired response,

which was an identification of [Appellant] as the second shooter.” Id. at 20.

Because Mr. Gardner testified at trial that he could not see the second shooter

and he “never made a subsequent identification of [Appellant] as the

shooter[,]” Appellant claims that his “out-of-court identification should have

been suppressed.” Id.

Initially,

[w]hen reviewing the propriety of a suppression order, an

appellate court is required to determine whether the record

supports the suppression court’s factual findings and whether the

inferences and legal conclusions drawn by the suppression court

from those findings are appropriate. Where the record supports

the factual findings of the suppression court, we are bound by

those facts and may reverse only if the legal conclusions drawn

therefrom are in error. However, where the appeal of the

determination of the suppression court turns on allegations of

legal error, the suppression court’s conclusions of law are not

binding on an appellate court, whose duty it is to determine if the

suppression court properly applied the law to the facts.

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011) (citation

omitted). Additionally:

Whether an out of court identification is to be suppressed as

unreliable, and therefore violative of due process, is determined

from the totality of the circumstances. Suggestiveness in the

identification process is a factor to be considered in determining

the admissibility of such evidence, but suggestiveness alone does

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not warrant exclusion. Identification evidence will not be

suppressed unless the facts demonstrate that the identification

procedure was so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification.

Id. (cleaned up).

Here, in explaining the basis for its decision to deny Appellant’s motion

to suppress Mr. Gardner’s out-of-court identification, the trial court stated:

In … Fulmore, the Superior Court ruled that the trial court erred

in suppressing an out-of-court identification in an array lineup

when a detective working the case merely used the phrase[,]

“which one comes to mind[,]” while showing the victim a photo

array of suspects that included the [d]efendant. Unlike in …

Fulmore[,] where the trial court erred in suppressing the

identification evidence, the trial court in [this] case was correct in

not suppressing the out-of-court identification. In this case, Neil

Gardner had identified [Appellant] before Detective Savoy had

asked the question thereby clarifying that Mr. Gardner was

identifying the one who shot at him. N.T[.,] 09/08/21[,] at 77,

exhibit C-12. Further, this would not be considered suggestive

because Mr. Gardner knew that he was supposed to be identifying

who he thought shot at him. However, even if this were to be

considered suggestive, suggestiveness alone does not warrant

exclusion. In conclusion, the trial court did not err in allowing an

out[-]of[-]court identification.

Trial Court Opinion (TCO), 12/5/22, at 7-8.

We discern no abuse of discretion in the court’s decision. Mr. Gardner

had identified Appellant in the photo array before he was asked the

purportedly suggestive question. We also agree with the court that, because

Mr. Gardner knew he was there to identify the individual(s) who shot at him,

Detective Savoy’s question was not unduly suggestive. Appellant additionally

fails to explain why the ostensible suggestiveness of the detective’s question,

alone, warranted exclusion, especially where other steps were taken to ensure

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the reliability of Mr. Gardner’s identification. Specifically, as the

Commonwealth points out,

Mr. Gardner was interviewed using a “double blind” procedure by

Daniel Flynn, a detective who did not know that defendant was a

suspect. At the time, Mr. Gardner was represented by his own

attorney, who was present. The event was videotaped. And after

selecting [Appellant’s] photo and signing his name, Mr. Gardner

stated that he was “100% confident” (N.T.[,] 9/16/20, [at] 17-

32).

Commonwealth’s Brief at 8. Given these facts, we cannot conclude that the

question asked by Detective Savoy, after Mr. Gardner had already identified

Appellant in the photo array, somehow retroactively rendered the

identification procedure “so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Fulmore, supra.

Accordingly, Appellant’s first issue is meritless.

Next, Appellant argues that the trial court erred by denying his pretrial

motion to preclude Officer Goodwin from identifying Appellant in a video of

the shooting that was played for the jury. According to Appellant, the officer

admitted he “never really had any real face-to-face contact with [Appellant,]”

and his identification of Appellant was premised only on the fact that the

person in the video was “a big husky guy with a bald head” like Appellant.

Appellant’s Brief at 21, 22 (citation to the record omitted). Additionally,

Appellant points out that Officer Goodwin “said at first that he recognized

[Appellant’s] gait[,] but then conceded that there was nothing particular about

the way [Appellant] walks” that supported the officer’s identification. Id. at

23. Appellant contends that this fact makes his case distinguishable from

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Commonwealth v. Spencer, 639 A.2d 820 (Pa. Super. 1994), where the

Commonwealth called

witness … Cindy Wimer, who had known [Spencer] for

approximately a year and who had observed the distinctive and

easily recognized gait with which he walked. When [Spencer]

walked, she said, he had a “bounce in his step … like rolling off a

step.” She was shown the video tape of the robbery, and said the

robber walked like Spencer.

Id. at 823-24. On appeal, Spencer argued that Wimer’s testimony “should

have been disallowed because she was not qualified to express an opinion that

the robber’s gait was similar to his.” Id. at 824. We disagreed, concluding

that Wimer’s “opinion that the gaits of the robber and [Spencer] were similar

was rationally based on her perception and was essential to a clear

understanding of her testimony. The trial court did not err by allowing the

jury to hear this testimony by the witness.” Id.

Here, Appellant contends that,

the testimony offered by Officer Goodwin did not meet the

standard established in Spencer. Officer Goodwin testified that

he had never actually met or talked with [Appellant]. Unlike the

[witness] in Spencer, who knew the appellant and testified to his

distinctive gait, Officer Goodwin said at first that he recognized

[Appellant’s] gait but then conceded that there is nothing

particular about the way [Appellant] walks. Officer Goodwin

offered only general characteristics - size, bald head, and beard -

which are not distinctive and are shared by many people.

Furthermore, while the parole officer in Spencer was allowed to

use her specific knowledge of the appellant to testify that the

robber in the video “looked like” the appellant, here the trial court

erroneously allowed Officer Goodwin to give an opinion that the

person in the video was [Appellant]. Because he cited only

general characteristics and had never met [Appellant], Officer

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Goodwin should have been precluded from making an

identification from the video shown at trial.

Appellant’s Brief at 23-24 (emphasis in original).

In response, the Commonwealth argues that,

[u]nder Pennsylvania law, lay opinion testimony is admissible if it

is “rationally based on the perception of the witness, helpful to a

clear understanding of the witness’ testimony or the

determination of a fact in issue, and not based on scientific,

technical, or other specialized knowledge….” Pa.R.E. 701.

[Officer] Goodwin satisfied that standard. As the [officer]

explained, he knew that [Appellant] was the person in the video

because he had seen him on an average of a few times a week

while on patrol ([N.T., 8/30/21,1 at] 20, 24). Not only did he

recognize [Appellant] from his size, bald head, and beard, but

[Appellant] was wearing a particular sweatsuit with lettering on

the left leg in which he had been previously dressed when

photographed by police conducting surveillance (id.[ at] 17-19).

This clearly provided an adequate foundation for admissibility, as

[the suppression court] determined. See Commonwealth v.

Palmer, 192 A.3d 85, 101 (Pa. Super. 2018) ([finding that the]

detective’s testimony that he identified shooter on surveillance

video was properly admissible as opinion evidence). [Appellant’s]

point that [Officer Goodwin] had not previously conversed with

him or seen him walking with a “distinctive gait” … goes only to

the weight of the evidence.

Commonwealth’s Brief at 10-11.

Additionally, the trial court opined that it “did not err in allowing Officer

Goodwin to offer testimony[,]” reasoning:

Officer Goodwin had familiarity with [Appellant]…, as he had seen

him around the neighborhood several times. His testimony was

____________________________________________

1 We note that the parties both refer to July 2, 2021, as the date of the

suppression hearing. However, the cover page of the transcript is dated

August 30, 2021, and the transcript is labeled with this date in the electronic

record. Accordingly, for purposes of clarity, we will cite the August 30, 2021

date.

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also helpful in determining the integrity of Neil Gardner’s selection

of [Appellant] from the photographic array and his in-court

identification of him. Lastly, his testimony was not based on

technical knowledge.

TCO at 8.

We agree with the court and the Commonwealth. Officer Goodwin’s

testimony was helpful for the jury to assess the credibility of Gardner’s

identification of Appellant as the shooter, and to explain who was shown on

the video of the shooting. Moreover, as in Spencer, Officer Goodwin’s

testimony that Appellant was the individual seen in the video was not based

on any technical knowledge, but on the officer’s own perception of Appellant’s

physical features and unique clothing, based on the officer’s having observed

Appellant numerous times while on patrol in the area of the shooting. The

fact that the officer did not identify Appellant by a specific gait of walking but,

instead, identified him from his size, baldness, and distinctive clothing, does

not make the officer’s testimony inadmissible under Spencer. Rather, they

are simply factors that the jury could assess in determining the weight and/or

credibility to afford the officer’s identification of Appellant. Therefore, the trial

court did not abuse its discretion in admitting Officer Goodwin’s testimony.

See Palmer, 192 A.3d at 99 (“The admission of evidence is committed to the

sound discretion of the trial court, and a trial court’s ruling regarding the

admission of evidence will not be disturbed on appeal unless that ruling

reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or

such lack of support to be clearly erroneous.”) (citation omitted).

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In Appellant’s third issue, he contends that he is entitled to a new trial

because “the trial judge inexplicably allowed the Assistant District Attorney to

read to the jury an excerpt from an attorney’s argument at sentencing in a

case involving the complainant, Neil Gardner.” Appellant’s Brief at 24-25.

Specifically, to explain why Gardner refused to identify Appellant as the second

shooter at trial, the Commonwealth was permitted to read into evidence a

portion of a transcript from Gardner’s sentencing hearing in an unrelated case,

where Gardner’s attorney stated: “His family has been a big support and they

have all came [sic] to every listing. They did not come today. He specifically

asked me not to call them. He didn’t want it to get out in the neighborhood

that he’s been cooperating for fear about retaliation.” N.T. Trial, 9/8/21, at

33. Appellant now complains that “the introduction of [Gardner’s] attorney’s

argument is not evidence at all, and it should not have been used in

[Appellant’s] trial in any way. Furthermore, this error was not harmless,

because it allowed the prosecution to establish a reason that [Gardner] would

fail to identify [Appellant] as the shooter at trial when he had previously

chosen [Appellant’s] photo out of a photo array.” Appellant’s Brief at 25.

The Commonwealth counters that, even if the at-issue statement by

Gardner’s attorney should not have been admitted, any such error was

harmless. See Commonwealth’s Brief at 12-14. We agree.

[T]he doctrine of harmless error is a technique of appellate review

designed to advance judicial economy by obviating the necessity

for a retrial where the appellate court is convinced that a trial error

was harmless beyond a reasonable doubt. Its purpose is premised

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on the well-settled proposition that “[a] defendant is entitled to a

fair trial but not a perfect one.”

Int. of J.M.G., 229 A.3d 571, 581 (Pa. 2020) (quoting Commonwealth v.

Allshouse, 36 A.3d 163, 182 (Pa. 2012) (citation omitted)).

Presently, the Commonwealth correctly observes that the at-issue

evidence was cumulative of Gardner’s own testimony at Appellant’s trial.

Namely, just after the Commonwealth read the at-issue statement by

Gardner’s attorney at Gardner’s sentencing hearing, it had the following

exchange with Gardner:

[The Commonwealth:] Am I reading that correctly?

[Gardner:] Yes.

[The Commonwealth:] And you also told your attorney not to let

your family come in because you were scared of retaliation?

[Gardner:] Yes.

N.T. Trial, 9/8/21, at 33. Therefore, even if the evidence to which Appellant

now objects had not been admitted, Gardner’s testimony revealed the same,

exact fact to the jury, i.e., that Gardner did not want his family to come to his

sentencing hearing in his unrelated case because he was scared of retaliation.

Moreover, we agree with the trial court that “[a]ny improper evidence of

[Gardner’s] attorney’s words coming in are so de minimus that they would not

have prejudiced [Appellant] nor contributed to the verdict[,]” given Gardner’s

out-of-court identification of Appellant as one of the two shooters, and Officer

Goodwin’s identification of Appellant as one of the shooters in the video of the

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incident. Thus, we agree with the trial court and the Commonwealth that any

error in admitting the at-issue evidence was harmless.

In Appellant’s next issue, he contends that a new trial is warranted due

to the prosecutor’s remark, in closing argument, comparing appellant “to the

character Omar form the TV series The Wire.” Appellant’s Brief at 26.

According to Appellant, the “reference diverted the jury’s attention from the

facts in evidence and caused them to think about a television character who

was a murderer. This caused undue prejudice to [Appellant] and warrants a

new trial.” Id. at 27.

This claim is waived. As the trial court observes, “[t]he absence of a

contemporaneous objection below constitutes a waiver of [the] appellant’s

current claim respecting the prosecutor’s closing argument.” TCO at 10

(quoting Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008) (citing

Pa.R.A.P. 302(a); Commonwealth v. Butts, 434 A.2d 1216, 1219 (Pa. 1981)

(stating that the failure to object during or after summation constitutes waiver

of prosecutorial misconduct claim)). Here, “counsel for the defense did not

object to this statement at trial….” Id. at 11. Therefore, we agree with the

court that Appellant’s claim is waived for our review.

Finally, Appellant challenges the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right. Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant

challenging the discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test:

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We 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.[] § 9781(b).

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

appeal denied, … 909 A.2d 303 ([Pa.] 2006). Objections to the

discretionary aspects of a sentence are generally waived if they

are not raised at the sentencing hearing or in a motion to modify

the sentence imposed. Commonwealth v. Mann, 820 A.2d 788,

794 (Pa. Super. 2003), appeal denied, … 831 A.2d 599 ([Pa.]

2003).

The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis. Commonwealth v. Paul,

925 A.2d 825, 828 (Pa. Super. 2007). A substantial question

exists “only when the appellant advances a 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.”

Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Instantly, Appellant filed a timely notice of appeal, and he has set forth

a Rule 2119(f) statement in his appellate brief. Therein, Appellant states that

the court “failed to consider any mitigation presented by the defense and did

not mitigate the sentence[,] despite stating that it found a mitigating factor in

[Appellant’s] psychiatric issues.” Appellant’s Brief at 10. Additionally, he

complains that “[t]he court exceeded the sentencing guidelines and

mandatory minimum without proper explanation or justification, and therefore

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this [C]ourt should consider the issue of an excessive and unreasonable

sentence.” Id.

Appellant did not raise either of these sentencing claims in his post-

sentence motion. Therein, Appellant cursorily stated: “Each sentence, as well

as the aggregate sentence of 28.5 to 57 years, far exceeds the sentencing

guidelines and is unreasonable under the circumstances.” Post-Sentence

Motion, 6/3/22, at 1 ¶ 3. Because Appellant did not aver that the court failed

to consider or apply mitigating factors in this case, or that the court did not

give sufficient explanation for the sentence it imposed, these arguments are

waived. See Griffin, 65 A.3d at 936 (“[I]ssues challenging the discretionary

aspects of a 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.”) (citation omitted).2

In any event, even if not waived, we would not agree with Appellant

that the court abused its ample sentencing discretion.

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

____________________________________________

2 In the Argument portion of Appellant’s brief, he adds additional claims that

“[t]he court … improperly stated that [Appellant] showed a lack of remorse[,]”

and that the court essentially double-counted factors “already accounted for

by the sentencing guidelines.” Appellant’s Brief at 28, 29. These claims were

not raised in Appellant’s post-sentence, or in his Rule 2119(f) statement.

Thus, they are also waived. Griffin, supra.

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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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

Here, the trial court

reviewed a presentence report and mental health evaluation, as

well as receiving additional input from the parties (N.T.[,]

5/26/22, [at] 21-24). Accordingly, [the court] is presumed to

have been “aware of the relevant information regarding the

defendant’s character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Devers,

546 A.2d 12, 18 (Pa. 1988). Indeed, the court specifically

acknowledged [Appellant’s] psychiatric history, difficult childhood,

and the fact that he had attended drug and alcohol counseling.

But as required, the court also considered the need to protect the

public in light of [Appellant’s] “dangerous propensities” and

unfavorable prospects for rehabilitation (N.T.[,] 5/26/22, [at] 25).

In this regard, [the court] emphasized that [Appellant] had

indiscriminately fired a barrage of ammunition at a crowded urban

location – and continu[ed] firing even when the man he had

targeted was too far away to be hit (id.[ at] 20-21). Additionally,

it noted that [Appellant] had not been deterred by his prior

interactions with the criminal justice system (id.[ at] 22). In this

regard, it should be [noted] that [Appellant] committed the

instant offense while on parole from two convictions for attempted

murder, after shooting one man in the kidney and another in the

back.

Commonwealth’s Brief at 16-17; see also TCO at 11 (“[T]he facts surrounding

this case were that there were many pedestrians coming in and out of the

grocery store at the time of the shooting, [Appellant] did not stop shooting

even after Mr. Gardner was out of range, and [Appellant] was previously

incarcerated for attempted murder.”). We would agree with the

Commonwealth that “[u]nder the circumstances, [Appellant’s] sentence,

which included a mandatory[-]minimum term for aggravated assault, was not

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an abuse of discretion.” Commonwealth’s Brief at 17. Thus, even if

Appellant’s sentencing claims were preserved, no relief would be due.

Judgment of sentence affirmed.

Date: 2/8/2024

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