Com. v. Aybar, C. ( 2016 )


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  • J-E01010-16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CHRISTIAN AYBAR,
    Appellant                   No. 1224 MDA 2014
    Appeal from the PCRA Order Entered June 23, 2014
    In the Court of Common Pleas of Berks County
    Criminal Division at No(s): CP-06-CR-0005201-2009
    BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
    LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.
    MEMORANDUM BY BENDER, P.J.E.:                             FILED JUNE 14, 2016
    Appellant, Christian Aybar, appeals from the order dismissing his
    petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 Appellant
    challenges the legality of his sentence, as well as the effectiveness of his
    trial and direct appeal counsel.        After careful review, we vacate the order
    denying PCRA relief and remand for further proceedings consistent with this
    memorandum.
    The following is a factual summary issued by this Court in the
    memorandum affirming Appellant’s judgment of sentence on direct appeal:
    On the evening of November 4, 2009, [A]ppellant shot
    Cory Washington (“the victim”) outside of [A]ppellant’s house in
    West Reading, Pennsylvania.      The victim fled the scene.
    ____________________________________________
    1
    42 Pa.C.S. §§ 9541-9546.
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    Appellant then called 911 at approximately 7:22 p.m. to report
    the shooting. While [A]ppellant was still speaking with the 911
    operator waiting for the authorities to arrive, the West Reading
    police directed nearby officers investigating the reported
    shooting to [A]ppellant’s location on the street outside of his
    house.
    Detective Joseph M. Brown proceeded to pat down
    [A]ppellant for weapons. Appellant informed the detective at
    this time that he was carrying a weapon on his person; Detective
    Brown then confiscated a semiautomatic firearm from
    [A]ppellant. Appellant also told the officer “the gun used in the
    shooting was in his residence, and that he shot the person in
    self-defense.”
    At that time, [A]ppellant identified Cory Washington as the
    man he shot. After placing [A]ppellant in a police car, the
    officers proceeded to forcibly enter [A]ppellant’s residence
    without a warrant. Detective Brown testified the purpose of
    entering the residence was to secure the victim [who was]
    believed [to] possibly [be] inside, and to prevent the possible
    destruction of the firearm involved in the shooting. At this point,
    the victim was actually in police custody in the nearby City of
    Reading. The officers on scene at [A]ppellant’s apartment then
    proceeded to sweep the premises, and secure the residence until
    the arrival of the search warrants.
    That initial search, and the subsequent search with a
    warrant, led to the recovery of a large quantity of evidence; the
    most relevant of which was a substantial quantity of marijuana,
    packaging material, scales, plastic bags, the Rossi .38-caliber
    revolver used to shoot the victim, and a portable safe holding
    recordkeeping materials inside.
    On March 21, 2011, a jury trial commenced. Appellant
    was convicted on March 23, 2011[,] of the aforementioned
    crimes,[2] and was sentenced on April 29, 2011[,] to five-and-a-
    ____________________________________________
    2
    Appellant was acquitted of two counts of aggravated assault, 18 Pa.C.S. §§
    2702(A)(1), (4). He was found guilty of one count of possession with intent
    to deliver a controlled substance (PWID), 35 Pa.C.S. § 780-113(a)(30); one
    count of possessing an instrument of crime (PIC), 18 Pa.C.S. § 907(a); two
    counts of simple assault, 18 Pa.C.S. §§ 2701(a)(1) and (2); one count of
    (Footnote Continued Next Page)
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    half to seven years’ incarceration plus five years’ probation, in
    addition to an order of restitution for $16,633.17.          The
    Commonwealth’s restitution request was for the outstanding
    “medical bill owed to the Reading Hospital for the services
    received by Cory Washington.”
    On May 9, 2011, [A]ppellant filed a timely motion for post-
    trial relief seeking arrest of judgment, reconsideration of the
    court’s pretrial suppression ruling or a judgment of acquittal
    under [Pa.R.Crim.P. 720(B)]. The trial judge vacated the initial
    sentence on May 11, 2011, pending a hearing on the post-trial
    motion. A hearing occurred on August 3, 2011, and on August
    8, 2011, the trial court denied [A]ppellant’s motion for post-trial
    relief. Also, on August 8, 2011, the sentences of April 29,
    2011[,] along with the order for restitution were reinstated.
    Commonwealth v. Aybar, No. 1540 MDA 2011, unpublished memorandum
    at 1-4 (Pa. Super. filed December 6, 2012) (citations to the record omitted).
    Appellant filed a timely direct appeal with this Court, and we affirmed.
    See id. He did not file a petition for permission to appeal to our Supreme
    Court. On November 25, 2013, Appellant filed a timely PCRA petition, which
    the PCRA court dismissed on June 23, 2014. Subsequently, Appellant filed
    two duplicate pro se notices of appeal on July 21, 2014, and July 23, 2014,
    which were consolidated by the PCRA court.        Appellant complied with the
    order to file a Pa.R.A.P. 1925(b) statement and, on August 21, 2014, the
    PCRA court issued its Rule 1925(a) opinion. On appeal, Appellant presents
    four issues for our review, which we paraphrase as follows:
    _______________________
    (Footnote Continued)
    recklessly endangering another person (REAP), 18 Pa.C.S. § 2705; one
    count of possession of a controlled substance, 35 Pa.C.S. § 780-113(a)(16);
    and one count of possession of drug paraphernalia, 35 Pa.C.S. § 780-
    113(a)(32).
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    1. Whether the trial court erred in denying Appellant’s PCRA
    petition where Appellant’s right to a jury trial was violated
    because the mandatory sentencing factor was not determined
    by the fact-finder beyond a reasonable doubt.
    2. Whether the court erred in denying Appellant’s PCRA petition
    where all prior counsel were ineffective for failing to litigate a
    motion to suppress and/or failing to properly preserve this
    issue for a PCRA petition.
    3. Whether trial and appellate counsel were ineffective for failing
    to challenge the sufficiency of the evidence with regard to the
    PWID, REAP, and PIC convictions because the Commonwealth
    did not prove that Appellant exercised constructive possession
    over the items.
    4. Whether trial and appellate counsel were ineffective for failing
    to challenge the sentence in this matter with regard to the
    excessiveness of the sentence imposed.
    See Appellant’s Brief, at 5.
    After Appellant and the Commonwealth filed their briefs, this case was
    certified for en banc review by this Court, acting sua sponte, in relation to
    the first issue above. See Order, 10/26/15, at 1-2. Specifically, the parties
    were directed to answer the question: “Whether the PCRA petitioner is
    entitled to relief when he raises, in a timely PCRA petition, a claim that his
    sentence is illegal pursuant to Alleyne v. United States, ___ U.S. ___, 
    133 S.Ct. 2151
     (2013), and Commonwealth v. Newman, 
    99 A.3d 86
     (Pa.
    Super. 2014) (en banc)?”       Id. at 1.     Subsequently, Appellant filed an
    Amended Brief on December 16, 2015, and the Commonwealth filed a
    Substituted Appellee’s Brief on January 6, 2016.
    “Our standard of review for an order denying post-conviction relief
    looks to whether the PCRA court’s determination is supported by the record
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    and whether it is free of legal error.” Commonwealth v. Treadwell, 
    911 A.2d 987
    , 989 (Pa. Super. 2006) (citations omitted).                 The PCRA court’s
    findings will not be disturbed unless there is no support for the findings in
    the certified record. 
    Id.
    For ease of disposition, we address Appellant’s claims out of the order
    in which they were presented.                 We begin with Appellant’s ineffective
    assistance of counsel claims.
    Failure to Suppress and Preserve a Suppression Claim
    Appellant    argues     that   trial    and/or   direct   appeal   counsel   were
    ineffective for failing to file and subsequently preserve a suppression claim
    regarding the seizure of evidence during the warrantless search of
    Appellant's home.3        To make out a successful ineffectiveness claim, a
    defendant must plead and prove that his counsel's performance was
    deficient and that the deficient performance prejudiced the defense.
    Commonwealth v. Reaves, 
    923 A.2d 1119
    , 1127 (Pa. 2007) (citing
    Strickland v. Washington, 
    466 U.S. 668
     (1984)); Commonwealth v.
    ____________________________________________
    3
    Although the PCRA court deemed this issue waived based on Appellant’s
    failure to raise the issue on direct appeal, Appellant claims that, because
    collateral matters are reserved for PCRA petitions, the issue is not waived.
    See Commonwealth v. Stollar, 
    84 A.3d 635
    , 651-52 (Pa. 2014). We
    agree; Appellant was not obligated to raise an ineffectiveness claim on direct
    review and, therefore, he has not waived the claim due to direct appeal
    counsel’s failure to raise it. Nevertheless, despite the PCRA court’s error in
    this regard, “[w]e may affirm a PCRA court's decision on any grounds if it is
    supported by the record.” Commonwealth v. Burkett, 
    5 A.3d 1260
    , 1267
    (Pa. Super. 2010).
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    Pierce, 
    786 A.2d 203
    , 213 (Pa. 2001) (articulating that an ineffective
    assistance of counsel claim must show that (1) the underlying claim is of
    arguable merit; (2) counsel’s performance lacked a reasonable basis; and
    (3) the ineffectiveness of counsel caused the petitioner prejudice). Here, in
    order    to   demonstrate    prejudice,   Appellant   must   show    a   reasonable
    probability that, had counsel challenged the evidence, the results of the trial
    would have been different.       Commonwealth v. Spotz, 
    84 A.3d 294
    , 312
    (Pa. 2014).
    Our review of Appellant’s claim is potentially inhibited due to the
    procedural history of this case. The PCRA court rejected this claim based on
    its conclusion that Appellant had waived this matter by not raising it in his
    direct appeal. The court explains:
    Initially, [Appellant] argues that he is entitled to PCRA
    relief under 42 [Pa.C.S.] § 9543(a)(2)(ii) based on pretrial
    counsel's failure to file a timely suppression motion. The Court
    believes that [Appellant] has waived this issue by abandoning it
    on [direct] appeal.        "To be eligible for [PCRA] relief...the
    petitioner must plead and prove by a preponderance of the
    evidence...that the allegation of error has not been previously
    litigated or waived." 42 [Pa.C.S.] § 9543(a)(3). "[A]n issue is
    waived if the petitioner could have raised it but failed to do so
    before trial, at trial, during unitary review, on appeal or in a prior
    state postconviction proceeding." 42 [Pa.C.S.] § 9544(b).
    Because the Court addressed the issue of pretrial counsel's
    alleged ineffectiveness in denying [Appellant]'s motion for post
    trial relief, [Appellant] had the obligation to raise and pursue this
    issue on direct appeal. The general rule is that "a defendant
    'should wait to raise claims of ineffective assistance of trial
    counsel until collateral review.'" Commonwealth v. Bomar,
    
    826 A.2d 831
    , 853 (Pa. 2003) (quoting Commonwealth v.
    Grant, 
    813 A.2d 726
    , 738 (Pa. 2002)). However, an exception
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    has been recognized whereby a defendant can raise claims of
    ineffectiveness of counsel on direct review where said claims
    were presented to and addressed by the trial court. Bomar, 813
    A.2d at 853-55.
    [Appellant]'s motion for post trial relief raised the issue of
    pretrial counsel's ineffectiveness for failing to file a timely
    suppression motion. In fact, [Appellant]'s motion specifically
    requested that the Court hold a hearing to address this issue,
    which the Court did on August 3, 2011. (N.T., Post Sentence
    Motion Hearing, 8/3/11).
    …
    By denying the [Appellant]'s motion for post trial relief, the
    Court addressed the issue of pretrial counsel's effectiveness.
    [Appellant] raised this issue in his Concise Statement. However,
    [Appellant] failed to present this issue in his appellate brief.
    (See Superior Court Memorandum, dated December 6, 2012,
    filed March 26, 2013, at 4).         Thus, [Appellant] abandoned
    consideration of his ineffective assistance issue and the issue is
    considered waived for purposes of the PCRA.
    PCRA Court Memorandum Opinion, 8/25/14, at 8-9 (incorporating the PCRA
    court’s Pa.R.Crim.P. 907 Order and Notice of Intent to Dismiss).
    Appellant asserts that the claim has not been waived because he was
    not required to raise the collateral matter of counsels’ ineffectiveness on
    direct appeal. We agree.
    In Commonwealth v. Stollar, 
    84 A.3d 635
     (Pa. 2014), the defendant
    raised ineffectiveness claims during the penalty phase of his capital trial.
    The trial court held a hearing and ultimately disposed of them.             When
    appellant attempted to challenge the denial of those claims in his
    subsequent direct appeal, under the auspices of the Bomar exception to
    Grant, our Supreme Court dismissed them without prejudice to the
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    defendant’s ability to raise them on collateral review.   Stollar, 84 A.3d at
    652. The Stollar Court stated:
    For more than ten years, this Court has applied the rule
    that claims of ineffectiveness of counsel must be raised on
    collateral review, not on direct appeal. See []Grant, [] 813
    A.2d [at] 738[]. However, an exception arose under our case
    law premised upon the supposition that when the relevant
    ineffectiveness claims have been properly raised and preserved
    in the trial court, the trial court holds a hearing on those claims,
    and the trial court addresses the merits of the claims in a
    subsequent opinion, these ineffectiveness claims may be
    reviewed on direct appeal pursuant to the so-called “Bomar
    exception.” See Commonwealth v. Rega, 
    593 Pa. 659
    , 
    933 A.2d 997
    , 1018 (2007); []Bomar, []826 A.2d [at] 853–55[.]
    Significant criticisms of the extent of the use of the
    “Bomar     exception”     raised   questions     concerning  the
    appropriateness of its continued viability. Those questions have
    now been definitively answered in our recently filed case,
    Commonwealth v. Holmes, ––– Pa. ––––, 
    79 A.3d 562
    (2013). Specifically, we relevantly held in that case:
    Grant's general rule of deferral to PCRA review remains
    the pertinent law on the appropriate timing for review of
    claims of ineffective assistance of counsel; we disapprove
    of expansions of the exception to that rule recognized in
    Bomar; and we limit Bomar, a case litigated in the trial
    court before Grant was decided and at a time when new
    counsel entering a case upon post-verdict motions was
    required to raise ineffectiveness claims at the first
    opportunity, to its pre-Grant facts. We recognize two
    exceptions, however, both falling within the discretion of
    the trial judge. First, we appreciate that there may be
    extraordinary circumstances where a discrete claim (or
    claims) of trial counsel ineffectiveness is apparent from the
    record and meritorious to the extent that immediate
    consideration best serves the interests of justice; and we
    hold that trial courts retain their discretion to entertain
    such claims. [ ]
    Second ... where the defendant seeks to litigate multiple or
    prolix claims of counsel ineffectiveness, including non-
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    record-based claims, on post-verdict motions and direct
    appeal, we repose discretion in the trial courts to entertain
    such claims, but only if (1) there is good cause shown, and
    (2) the unitary review so indulged is preceded by the
    defendant's knowing and express waiver of his entitlement
    to seek PCRA review from his conviction and sentence,
    including an express recognition that the waiver subjects
    further collateral review to the time and serial petition
    restrictions of the PCRA.
    
    Id.
     at 563–4.
    Stollar, 84 A.3d at 651-52 (footnote omitted).
    Instantly, the trial court relied on the Bomar exception when it
    concluded that Appellant abandoned an ineffectiveness claim he ostensibly
    could have raised on direct appeal. As detailed above, the Bomar exception
    is no longer applicable in so far as it departs from the dictates of Holmes.
    Furthermore, there is nothing in the record that indicates satisfaction of
    Holmes’ requirements so as to permit review of Appellant’s ineffectiveness
    claim on direct appeal.   Thus, we reject the trial court’s conclusion that
    Appellant waived his suppression-related ineffectiveness claims by failing to
    raise them in his direct appeal.    Appellant cannot be faulted for failing to
    litigate a claim on direct appeal when he was not permitted to do so.
    Despite the PCRA court’s error in this regard, “[w]e may affirm a PCRA
    court's decision on any grounds if it is supported by the record.” Burkett, 
    5 A.3d at 1267
    .    Accordingly, we turn to consider Appellant’s suppression-
    related ineffectiveness claim(s).    As to Appellant’s claim that his direct
    appeal counsel was ineffective for failing to litigate this claim on direct
    appeal, we conclude that claim is meritless.     As Appellant did not comply
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    with Holmes when he litigated his suppression-related ineffectiveness claim
    via a post-sentence motion, his direct appeal counsel would not have been
    permitted to raise that claim. Consequently, direct appeal counsel’s failure
    to raise trial counsel’s ineffectiveness on direct appeal did not prejudice
    Appellant, as Appellant is permitted to raised trial counsel’s ineffectiveness
    via his current PCRA petition.
    As to Appellant’s claim that trial counsel was ineffective for failing to
    file a suppression claim on his behalf, we note that we lack the lower court’s
    analysis of this claim. Although the trial court held a post-sentence motion
    hearing, at which trial counsel testified regarding why he failed to file a
    suppression motion, the trial court did not issue an opinion specifically
    addressing that claim when it collectively denied Appellant’s post-sentence
    motions without any specific comments regarding the court’s rationale for
    doing so.   See Order (Denying Post-Sentence Motions), 8/8/11, at 1-2.
    Furthermore,    although   Appellant    did   raise   the    suppression-related
    ineffectiveness claim in the Rule 1925(b) statement that he filed on direct
    appeal, the trial court’s Rule 1925(a) opinion dismissed that claim as
    “waived and without merit” because direct appeal counsel failed to provide a
    transcription of the post-sentence motion hearing.          See Trial Court Rule
    1925(a) Opinion, 10/31/11, at 12.       Moreover, as noted above, the PCRA
    court did not review Appellant’s suppression-related ineffectiveness claim
    beyond its incorrect waiver analysis.
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    However, this Court can ascertain from the now-available transcript of
    the post-sentence motion hearing, and from elsewhere in the certified
    record, that the trial court determined, and we agree, that Appellant
    satisfied the arguable merit prong of his ineffectiveness claim.4 We can also
    ____________________________________________
    4
    The trial court granted a post-sentence motion hearing premised on the
    fact that there appeared to be “sufficient information” that would have
    justified trial counsel’s filing a timely suppression motion, such that it “put[]
    at issue the effectiveness of counsel in not filing … a timely motion to
    suppress.” N.T., 8/3/11, at 4-5. Similarly, in the order denying Appellant’s
    attempt to file an untimely suppression motion, the trial court stated: “it’s
    clear to the [c]ourt that the Probable Cause Affidavit contained information
    which arguably could form a basis for a [m]otion to [s]uppress….” Order,
    2/8/11, at 1 (single page).
    We agree that the arguable merit prong is satisfied. It is not in
    dispute that the police required exigency to enter Appellant’s home without a
    warrant, and there is no evidence of record indicating that Appellant
    consented to the entry. Indeed, Appellant’s testimony at the post-sentence
    motion hearing was wholly inconsistent with having consented to the search,
    as is the fact that the police sought and acquired a search warrant after the
    initial search. Thus, at issue in any motion to suppress would have been
    whether there was the requisite exigency to justify the police’s entering
    Appellant’s home without a warrant.
    The Commonwealth asserts the applicable exigent circumstance was
    that the police believed Appellant’s victim or victims might have been in
    Appellant’s home when they entered without a warrant. If the police could
    reasonably believe that a person inside the residence was in need of
    immediate aid, the warrantless search is excused. See Commonwealth v.
    Davido, 
    106 A.3d 611
    , 625 (Pa. 2014) (holding a warrantless entry was
    justified by exigency when police possessed a “reasonable belief that a
    victim would be found inside who needed immediate police assistance”).
    However, the Commonwealth’s claim of exigency is inconsistent with
    the fact that Appellant self-reported the shooting and told the police that the
    victim had fled the scene in a gold van. N.T., 8/3/11, at 19. Clearly, this
    fact could have undermined the Commonwealth’s ability to meet their
    (Footnote Continued Next Page)
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    ascertain    from      the   record   that       the   prejudice   prong   of   Appellant’s
    suppression-related ineffectiveness claim is easily satisfied because, had his
    suppression claim been granted, it would be nearly impossible for the
    Commonwealth to have moved forward with the drug-related charges.
    Thus, the only issue in dispute is whether trial counsel had a reasonable
    basis for not filing a suppression motion on Appellant’s behalf.
    At the post-sentence motion hearing, trial counsel, Daniel Emkey,
    Esq., stated that he did not file a suppression motion on Appellant’s behalf
    because Appellant specifically directed him not to do so. N.T., 8/3/11, at 9.
    Emkey claimed that the district attorney had offered favorable plea terms
    that would have been taken off the table if Appellant filed a suppression
    motion.     Emkey claimed that Appellant told him not to file a suppression
    motion in order to preserve that offer.                Emkey also stated that he had
    advised Appellant that a motion to suppress was unlikely to be successful
    because he believed that exigency – in this case the need to search for
    injured victims – justified the warrantless entry. Id. at 8.
    _______________________
    (Footnote Continued)
    burden to establish exigency at a suppression hearing. If the police had no
    reasonable belief that the sole victim was still in the immediate vicinity of
    Appellant’s home, and/or no reasonable belief that there were multiple
    victims of the shooting, then the initial search of Appellant’s home was
    conducted in the absence of exigent circumstances. Moreover, the yield of
    the subsequently obtained warrants, warrants based on the discovery of
    contraband during the warrantless search, would also be suppressible as
    fruit of the poisonous tree.
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    However, there is no evidence of record supporting Emkey’s claim that
    any plea deal had been offered by the Commonwealth, nor is there any
    evidence of record indicating that any such plea deal was conditional upon
    Appellant’s declining to file a suppression motion.    Id. at 21.   Moreover,
    Appellant’s testimony directly contradicted Emkey’s.    Appellant stated that
    he raised the matter of the police’s warrantless entry into his home from the
    very first discussion with his attorney. Id. at 43.   Subsequently, Appellant
    “mentioned to him about the suppression hearing at least four, five, six
    times, maybe more.” Id. at 47. Appellant also stated:
    [Emkey] would give me two different reasons why not to file
    one. The first reason was because he assumed what the police
    would say, and they would back each other up. And the second
    reason was because he claimed that I had shot [the victim] in
    the back and that the DA said that if I fight the case, that he …
    was going to amend attempted murder to my charges.
    Id.
    Regarding Emkey’s testimony, Appellant was asked, “did you ever tell
    him not to file a suppression motion?” Id. at 48. He answered, “[n]ever.”
    Id. Appellant was also asked: “Did you ever tell him you would take a plea
    to the charges?” Id. He answered: “Never.” Id.
    Clearly, the reason for counsel’s failure to file a suppression motion,
    and the reasonableness of that inaction, is dependent on the credibility of
    Appellant’s and Emkey’s respective testimonies as they relate to the
    evidence of record. Unfortunately, no such credibility determinations have
    been made; at least, no such credibility determinations have been
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    documented by the lower court.       As such, we cannot determine whether
    Appellant is entitled to relief without further input from the PCRA court.
    Accordingly, we vacate the order denying Appellant’s PCRA petition and
    remand for a determination of whether trial counsel had a reasonable basis
    for his failure to file a suppression motion on Appellant’s behalf and, if
    necessary, to hold a hearing to assist in that determination.
    Sufficiency of the Evidence
    Appellant also contends that his trial and direct appeal counsel were
    ineffective in failing to challenge the sufficiency of the evidence. We begin
    with the first prong of the ineffectiveness test: whether there is arguable
    merit to the underlying sufficiency claims. A sufficiency claim alleges that
    the evidence admitted at trial failed to establish all the elements of a crime
    beyond a reasonable doubt. See Commonwealth v. Mobley, 
    14 A.3d 887
    ,
    889-890 (Pa. Super. 2011).
    Here, Appellant posits that a common element to PWID, REAP, and
    PIC, is the exercise of constructive possession over the items.            See
    Commonwealth v. Chenet, 
    373 A.2d 1107
     (Pa. 1977).                  Constructive
    possession is a judicially created doctrine that permits an inference of
    control over illegal items, although actual possession at the time of arrest
    cannot be shown.     Commonwealth v. Vargas, 
    108 A.3d 858
    , 868 (Pa.
    Super. 2014).   Appellant submits that this element was not satisfied, and
    that in not raising the issue before the trial court or on appeal, his trial and
    direct appeal counsel were ineffective.
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    This is not a situation where mere presence at a scene established
    conscious dominion over items. Cf. Commonwealth v. Fortune, 
    318 A.2d 327
    , 328 (Pa. 1974).       Rather, the theory of the defense’s case never
    disputed possession, as Appellant admitted control directly. The element of
    constructive possession of the items was established by Appellant’s own
    testimony when he stated that the marijuana was his and that he intended
    to sell a portion of it to a friend.         N.T., 3/22/11, at 398, 412-416.
    Constructive possession, in regard to the firearm, was established when
    Appellant testified that he shot the victim with the gun that was found in his
    apartment. Id. at 296.
    As such, the underlying sufficiency claim is without merit; therefore,
    this claim fails.   Accordingly, we conclude that the PCRA court’s denial of
    Appellant’s PCRA petition on this ground is supported by the record and free
    of legal error.
    Challenge to the Discretionary Aspects of the Sentence
    Appellant also claims that trial counsel was ineffective for failing to
    challenge the discretionary aspects of his sentence and, likewise, that his
    direct appeal counsel was ineffective for failing to raise that claim on direct
    appeal. Appellant believes that “the trial court did not give proper weight to
    his lack of criminal history, family history, family background[,] and facts in
    the case when” it sentenced Appellant “to the extra year imposed by the
    court to run consecutively to the flat five year mandatory sentence on the
    PWID” charge. Appellant’s Brief, at 28-29.
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    Challenges to the discretionary aspects of sentencing are reviewed for
    abuse of discretion. See Commonwealth v. Walls, 
    926 A.2d 957
    , 961 (Pa.
    2007). When reviewing for an abuse of discretion in sentencing, we apply
    the following standards:
    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:
    [W]e conduct a four-part analysis to determine: (1)
    whether 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
    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).
    Commonwealth v. Evans, 
    901 A.2d 528
    , 533 (Pa. Super.
    2006), appeal denied, 
    589 Pa. 727
    , 
    909 A.2d 303
     (2006)
    (internal citations omitted).   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, 
    574 Pa. 759
    , 
    831 A.2d 599
     (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.
    ***
    An allegation that the sentencing court failed to consider
    certain mitigating factors generally does not necessarily raise a
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    J-E01010-16
    substantial question. Commonwealth v. McNabb, 
    819 A.2d 54
    , 57 (Pa. Super. 2003). Accord Commonwealth v. Wellor,
    
    731 A.2d 152
    , 155 (Pa. Super. 1999) (reiterating allegation that
    sentencing court “failed to consider” or “did not adequately
    consider” certain factors generally does not raise substantial
    question). Compare Commonwealth v. Felmlee, 
    828 A.2d 1105
    , 1107 (Pa. Super. 2003) (en banc) (stating substantial
    question is raised, however, where appellant alleges sentencing
    court imposed sentence in aggravated range without adequately
    considering mitigating circumstances).
    “When imposing a sentence, a court is required to consider
    the particular circumstances of the offense and the character of
    the defendant.” Commonwealth v. Griffin, 
    804 A.2d 1
    , 10
    (Pa. Super. 2002), appeal denied, 
    582 Pa. 671
    , 
    868 A.2d 1198
    (2005), cert. denied, 
    545 U.S. 1148
    , 
    125 S.Ct. 2984
    , 
    162 L.Ed.2d 902
     (2005). “In particular, the court should refer to the
    defendant's    prior   criminal   record,   his    age,   personal
    characteristics and his potential for rehabilitation.” 
    Id.
     Where
    the sentencing court had the benefit of a presentence
    investigation report (“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.” Commonwealth v. Devers, 
    519 Pa. 88
    , 101-02, 
    546 A.2d 12
    , 18 (1988).                 See also
    Commonwealth v. Tirado, 
    870 A.2d 362
    , 368 (Pa. Super.
    2005) (stating if sentencing court has benefit of PSI, law expects
    court was aware of relevant information regarding defendant's
    character and weighed those considerations along with any
    mitigating factors). Further, where a sentence is within the
    standard range of the guidelines, Pennsylvania law views the
    sentence as appropriate under the Sentencing Code.            See
    Commonwealth v. Cruz-Centeno, 
    447 Pa.Super. 98
    , 
    668 A.2d 536
     (1995), appeal denied, 
    544 Pa. 653
    , 
    676 A.2d 1195
     (1996)
    (stating combination of PSI and standard range sentence, absent
    more, cannot be considered excessive or unreasonable).
    Although Pennsylvania's system stands for individualized
    sentencing, the court is not required to impose the “minimum
    possible” confinement. Walls, supra at 570, 926 A.2d at 965.
    Under 42 Pa.C.S.A. § 9721, the court has discretion to impose
    sentences consecutively or concurrently and, ordinarily, a
    challenge to this exercise of discretion does not raise a
    substantial question. Commonwealth v. Pass, 
    914 A.2d 442
    ,
    446-47 (Pa. Super. 2006). The imposition of consecutive, rather
    - 17 -
    J-E01010-16
    than concurrent, sentences may raise a substantial question in
    only the most extreme circumstances, such as where the
    aggregate sentence is unduly harsh, considering the nature of
    the crimes and the length of imprisonment.           
    Id.
     (holding
    challenge to court's imposition of sentence of six (6) to twenty-
    three (23) months imprisonment and sentence of one (1) year
    probation running consecutive, did not present substantial
    question). Compare [Commonwealth v. Dodge, 
    957 A.2d 1198
     (Pa. Super. 2008)] (holding imposition of consecutive
    sentences totaling 58½ to 124 years[’] imprisonment for thirty-
    seven (37) counts of theft-related offenses presented a
    substantial question because total sentence was essentially life
    sentence for forty-two year-old defendant who committed non-
    violent offenses with limited financial impact).
    Commonwealth v. Moury, 
    992 A.2d 162
    , 170-72 (Pa. Super. 2010).
    Instantly, Appellant complains that his consecutive sentence was
    imposed without consideration of certain factors which he believes should
    have served to mitigate his sentence. This is, on its face, not a substantial
    question for our review, McNabb, 
    supra,
     particularly since Appellant has
    failed    to   identify   where   his   sentence   falls   within   the   guideline
    recommendations. Compare Felmlee, 
    supra.
    Moreover, Appellant does not identify which consecutive sentence he is
    challenging. Appellant states that he is challenging a sentence of one year
    imposed consecutively to his mandatory sentence for PWID; however, we
    see no evidence of record that Appellant is serving such a sentence. Apart
    from Appellant’s mandatory sentence, the certified record shows that
    Appellant is serving a concurrent sentence of 1-12 months’ incarceration for
    drug paraphernalia, a consecutive sentence of 6-24 months for REAP, and a
    consecutive term of 5 years’ probation for PIC. Assuming that Appellant is
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    J-E01010-16
    challenging his consecutive sentence for REAP, we can emphatically state
    that we do not view such a sentence as “unduly harsh,” nor does Appellant
    present “extreme” circumstances for our consideration.          Pass, supra.
    Appellant was convicted for unjustly shooting the victim, which caused
    substantial injuries that required hospitalization.     A sentence of 6-24
    months’ incarceration for such a crime is patently reasonable, especially
    since Appellant was not separately sentenced for his convictions for simple
    assault. Thus, the trial court did not abuse its discretion at sentencing with
    respect to that offense.      Accordingly, even if Appellant presented a
    substantial question, his claim would be deemed meritless. As such, there is
    no arguable merit to the claims that trial and/or direct appeal counsel were
    ineffective for failing to challenge the discretionary aspects of Appellant’s
    consecutive sentence.
    Illegal Sentence
    Finally, because of our disposition in this matter, we decline to address
    Appellant’s legality of sentencing issue at this time, despite having certified
    this case for en banc review on that basis. If Appellant is awarded a new
    trial based on the claim compelling remand in this case, Appellant’s illegal
    sentencing claim will be rendered moot. If Appellant is again denied relief
    on that claim, however, Appellant is permitted, without prejudice, to re-raise
    the illegal sentencing claim in a subsequent appeal.
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    J-E01010-16
    Order vacated.     Case remanded for further proceedings
    consistent with this memorandum. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/14/2016
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