Com. v. Adams, N. ( 2015 )


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  • J-A30042-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    NAHEEM ADAMS,
    Appellant                No. 1016 EDA 2014
    Appeal from the Judgment of Sentence November 22, 2013
    in the Court of Common Pleas of Northampton County
    Criminal Division at No.: CP-48-CR-0000287-2013
    BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                                   FILED MARCH 04, 2015
    Appellant, Naheem Adams, appeals from the judgment of sentence
    imposed following his jury conviction of third-degree murder.1 We affirm.
    This case arises from the shooting death of George Jeter. The relevant
    facts and procedural history are as follows.          On July 27, 2012, at
    approximately 7:00 p.m., Harry Booker and Quincy Wilson went to Michael
    Comito’s apartment to purchase crack cocaine. Comito called Appellant to
    arrange the purchase, but Appellant did not have any crack cocaine. Comito
    then called Jeter, and arranged to buy two bags of crack. Appellant arrived
    at Comito’s apartment at approximately 8:00 p.m.               He entered the
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S.A. § 2502(c).
    J-A30042-14
    apartment, indicated that he did not have any drugs, and walked out the
    back door and sat on the back step.            Jeter arrived at the apartment at
    approximately     9:00   p.m.,    and   he    and   Comito   completed     the   drug
    transaction.    Jeter left through the side door and Comito and the other
    individuals inside the house heard what sounded like people pushing and
    shoving each other outside. Comito opened the door to see what was taking
    place and Appellant told him to go back in the house and shut the door.
    Comito shut the door and heard multiple gunshots.              Comito opened the
    door, saw Jeter lying on the ground, unsuccessfully attempted to revive him,
    and called 911. Another individual in the apartment, Karen Culver, looked
    out of a window and saw a person running away.
    Appellant    and   his     girlfriend   moved    out    of   their   apartment
    approximately two days after the murder. In October 2012, police arrested
    him in New York. Appellant informed detectives that he left the Easton area
    on July 27, 2012, and that he never returned.                Videotape surveillance
    footage obtained by police shows Appellant walking in the vicinity of
    Comito’s apartment at 8:22 p.m. on the night of Jeter’s murder.
    On July 30, 2013, the Commonwealth filed a motion in limine
    requesting that the court permit it to introduce evidence of Appellant’s prior
    bad act of drug dealing pursuant to Pennsylvania Rule of Evidence 404(b).
    Specifically, the Commonwealth sought to present evidence that Appellant
    was a drug dealer who had regularly provided drugs to the residents of
    Comito’s house. The trial court granted the motion on August 1, 2013. The
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    case proceeded to a four-day jury trial, and the testimony established that
    Jeter died as a result of multiple gunshot wounds to the chest and torso. On
    August 8, 2013, the jury found Appellant guilty of third-degree murder.2
    On November 22, 2013, after considering a pre-sentence investigation
    (PSI) report, the trial court sentenced Appellant to a term of not less than
    twenty nor more than forty years’ incarceration.        On December 2, 2013,
    Appellant filed a timely post-sentence motion, which the trial court denied
    following argument. This timely appeal followed.3
    Appellant raises five issues for our review:
    1.    Was the evidence presented at trial insufficient, as a matter
    of law, to sustain a conviction for the offense of third degree
    murder such that the trial court erred when it did not enter a
    judgment of acquittal?
    2.   Was the jury’s verdict of third degree murder against the
    weight of the evidence such that Appellant is entitled to a new trial?
    3.   Did the trial court err in allowing Appellant’s prior bad acts to
    be admissible under 404(b)(1)?
    4.    Was the Commonwealth erroneously permitted to introduce
    into evidence pictures of the victim’s face and body?
    5.   Did the trial court err in the discretionary aspects of its
    sentence?
    ____________________________________________
    2
    The jury found Appellant not guilty of first-degree murder.
    3
    Pursuant to the trial court’s order, Appellant filed a timely concise
    statement of errors complained of on appeal on April 21, 2014. See
    Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on May 16, 2014.
    See Pa.R.A.P. 1925(a).
    -3-
    J-A30042-14
    (Appellant’s Brief, at 6).
    In his first issue, Appellant challenges the sufficiency of the evidence
    to support his third-degree murder conviction.          (See id. at 30-38).      He
    maintains that the Commonwealth failed to prove that he was involved in
    the homicide, and that it did not establish the element of malice. (See id.
    at 33, 37).     He contends that the testimony of the Commonwealth’s
    witnesses,   whom     he     characterizes   as   “incoherent   drug   users,”   was
    inconsistent and inconclusive. (Id. at 37; see id. at 36). He points to the
    testimony of “[t]he Commonwealth’s most inconsistent witness, Mike
    Comito,” to support his argument that the Commonwealth’s evidence was
    insufficient as a matter of law. (Id. at 34; see id. at 36). This issue lacks
    merit.
    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. Cahill, 
    95 A.3d 298
    , 300 (Pa. Super. 2014) (citations
    omitted).
    The Pennsylvania Crimes Code defines murder of the third degree as
    “[a]ll other kinds of murder” other than first or second-degree murder. 18
    Pa.C.S.A. § 2502(c). “Murder in the third degree is an unlawful killing with
    malice but without the specific intent to kill.” Commonwealth v. Dunphy,
    
    20 A.3d 1215
    , 1219 (Pa. Super. 2011) (citations omitted).
    To convict an accused of third degree murder, the
    Commonwealth must prove that the accused killed another
    person with malice.
    The elements of third degree murder, as
    developed by case law, are a killing done with legal
    malice but without specific intent to kill required in
    first degree murder. Malice is the essential element
    of third degree murder, and is the distinguishing
    factor between murder and manslaughter.
    Malice under the law comprehends not only a particular ill-
    will, but every case where there is wickedness of disposition,
    hardness of heart, cruelty, recklessness of consequences, and a
    mind regardless of social duty, although a particular person may
    not be intending to be injured. Malice may be inferred from the
    attending circumstances of the act resulting in death. Otherwise
    stated, malice may be found where the defendant has
    consciously disregarded an unjustified and extremely high risk
    that h[is] conduct might cause death or serious injury to
    another.
    Commonwealth v. Geiger, 
    944 A.2d 85
    , 90 (Pa. Super. 2008), appeal
    denied, 
    964 A.2d 1
     (Pa. 2009) (citations and quotation marks omitted).
    Our Supreme Court has stated that “[m]alice . . . may be inferred from
    the use of a deadly weapon upon a vital part of the victim’s body.”
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    Commonwealth v. Ramtahal, 
    33 A.3d 602
    , 607 (Pa. 2011) (citation
    omitted).
    Here, the record reflects that Comito had asked both Appellant and
    Jeter to supply him with crack cocaine in the past, and that, on the night of
    Jeter’s murder, he called Appellant to arrange a drug purchase. (See N.T.
    Trial, 8/06/13, at 79-80, 82-83). Appellant told Comito that he was “out of
    stuff,” and Comito called Jeter instead to buy the crack. (Id. at 82; see 
    id. at 80, 83, 86
    ). Although Appellant did not have any crack to sell, he arrived
    at Comito’s apartment anyway and sat on the back porch. (See 
    id.
     at 86-
    87, 90, 94). Jeter then arrived at Comito’s apartment, completed the drug
    transaction, and left the house. (See 
    id. 92, 95
    ). Immediately after Jeter
    walked out the door, Comito and the other individuals in the apartment
    heard what sounded like people fighting on the porch. (See 
    id. at 95-96
    ).
    Comito opened the door and Appellant told him to “get back in the house,
    shut the door.” (Id at 99).4 Comito shut the door and then heard multiple
    gunshots. (See 
    id. at 100
    ). Karen Culver looked out of the window into the
    backyard and saw a person running away.          (See id. 154-57).   After the
    ____________________________________________
    4
    At trial, Comito consistently testified that Appellant told him to shut the
    door. (See N.T. Trial, 8/06/13, at 99, 125). However, at the preliminary
    hearing, he testified that he could not be sure that the voice he heard telling
    him to shut the door was Appellant’s. (See id. at 124-25; see also N.T.
    Preliminary Hearing, 1/18/13, at 31).
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    murder, Appellant and his girlfriend left the Easton area abruptly and went
    to New York. (See N.T. Trial, 8/07/13 at 12-13, 89-90).
    Upon review of the record, and viewing the evidence in the light most
    favorable to the Commonwealth, see Cahill, 
    supra at 300
    , we conclude
    that the trial court properly found the evidence was sufficient to sustain
    Appellant’s conviction. Although Comito’s testimony at trial was inconsistent
    with his testimony at the preliminary hearing, it was for the jury as
    factfinder to resolve credibility issues. See 
    id.
     Comito consistently testified
    at trial that Appellant directed him to shut the door, and it was for the jury
    to believe “all, part, or none of the evidence.”      
    Id.
       Further, although
    Appellant specifically challenges the element of malice, the evidence
    established that Jeter’s death was caused by multiple gunshot wounds to the
    chest and torso, and the jury could infer “[m]alice . . . from the use of a
    deadly weapon upon a vital part of the victim’s body.” Ramtahal, supra at
    607. The record supports the trial court’s determination that, although there
    were some inconsistencies in the Commonwealth witnesses’ testimony, the
    jury carefully deliberated and considered the offenses charged, and returned
    a verdict for the lesser offense of third-degree murder.     (See Trial Court
    Opinion, 5/16/14, at 12-14).    Accordingly, Appellant’s first issue does not
    merit relief.
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    In his second issue, Appellant challenges the weight of the evidence to
    support his conviction. (See Appellant’s Brief, at 38-41).5 He claims that
    the jury ignored or failed to give adequate weight to certain evidence that
    was favorable to him, and he again argues that the Commonwealth’s
    witnesses were not credible. (See id.). This issue lacks merit.
    Our standard of review is as follows:
    The finder of fact is the exclusive judge of the weight of
    the evidence as the fact finder is free to believe all, part, or none
    of the evidence presented and determines the credibility of the
    witnesses.
    As an appellate court, we cannot substitute our judgment
    for that of the finder of fact. Therefore, we will reverse a jury’s
    verdict and grant a new trial only where the verdict is so
    contrary to the evidence as to shock one’s sense of justice. A
    verdict is said to be contrary to the evidence such that it shocks
    one’s sense of justice when the figure of Justice totters on her
    pedestal, or when the jury’s verdict, at the time of its rendition,
    causes the trial judge to lose his breath, temporarily, and causes
    him to almost fall from the bench, then it is truly shocking to the
    judicial conscience.
    Furthermore, where the trial court has ruled on the weight
    claim below, an appellate court’s role is not to consider the
    underlying question of whether the verdict is against the weight
    of the evidence. Rather, appellate review is limited to whether
    the trial court palpably abused its discretion in ruling on the
    weight claim.
    ____________________________________________
    5
    Appellant preserved this issue by raising it in his post-sentence motion.
    (See Post-Sentence Motion, 12/02/13, at 3); see also Pa.R.Crim.P.
    607(A)(3).
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    Commonwealth v. Boyd, 
    73 A.3d 1269
    , 1274-75 (Pa. Super. 2013) (en
    banc) (citation and quotation marks omitted). When reviewing a weight of
    the evidence claim, this Court carefully considers the findings and reasons
    advanced by the trial court, because the trial judge had the opportunity to
    hear and see the evidence presented. See Commonwealth v. Brown, 
    48 A.3d 426
    , 432 (Pa. Super. 2012), appeal denied, 
    63 A.3d 1243
     (Pa. 2013).
    Here, the trial court determined:
    Based on the evidence presented at trial, this court was not
    inclined to upset the jury’s verdict after they were presented
    with sufficient evidence and thoughtfully deliberated. . . .
    . . . The jury made credibility determinations when
    presented with conflicting and inconsistent testimony.   The
    verdict was not so contrary to the evidence as to shock one’s
    sense of justice. . . .
    (Trial Ct. Op., at 14) (most capitalization omitted).
    After review of the record, we cannot conclude that the court’s
    decision constituted a palpable abuse of discretion.      See Boyd, 
    supra at 1275
    .     The jury, as finder of fact, while passing upon the credibility of
    witnesses and the weight of the evidence produced, was free to believe all,
    part, or none of the evidence.     See 
    id. at 1274
    .     Accordingly, Appellant’s
    weight claim does not merit relief.
    In his third issue, Appellant argues that the trial court erred by
    permitting the Commonwealth to introduce evidence of his prior bad act of
    drug dealing.      (See Appellant’s Brief, at 41-43).      He claims that this
    evidence was inadmissible under the general rule set forth in Pennsylvania
    -9-
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    Rule   of Evidence    404(b)(1), and    that   the   Commonwealth failed to
    demonstrate the applicability of any exception set forth in Rule 404(b)(2).
    (See id. at 41-42).      Appellant maintains that the court’s admission of
    evidence indicating he may have been a drug dealer in the past “misguided
    the jury to believe that [he] has the criminal propensity to commit the
    current crime.” (Id. at 43). We disagree.
    “Rulings on the admissibility of evidence are within the discretion of
    the trial judge, and such rulings form no basis for a grant of appellate relief
    absent an abuse of discretion.” Commonwealth v. Powell, 
    956 A.2d 406
    ,
    419 (Pa. 2008), cert. denied, 
    556 U.S. 1131
     (2009) (citation omitted).
    . . . [E]vidence of crimes [, wrongs, or acts] other than the one
    in question is not admissible solely to show the defendant’s bad
    character or propensity to commit crime.           [S]ee Pa.R.E.
    404(b)(1). (providing that “[e]vidence of a crime, wrong, or
    other act is not admissible to prove a person’s character in order
    to show that on a particular occasion the person acted in
    accordance with the character”). Nevertheless, “[t]his evidence
    may be admissible for another purpose, such as proving motive,
    opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). In
    order for evidence of prior bad acts to be admissible as evidence
    of motive, the prior bad acts must give sufficient ground to
    believe that the crime currently being considered grew out of or
    was in any way caused by the prior set of facts and
    circumstances. Additionally, evidence of other crimes may be
    admitted where such evidence is part of the history of the case
    and forms part of the natural development of the facts.
    Commonwealth v. Ferguson, 
    2015 WL 49438
    , at *3 (Pa. Super. filed Jan.
    5, 2015) (case citations and some quotation marks omitted). “In weighing
    whether evidence of prior bad acts will be admissible, however, the trial
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    court must still weigh the relevance and probative value of the evidence
    against the prejudicial impact of that evidence.”           Commonwealth v.
    Dowling, 
    883 A.2d 570
    , 578 (Pa. 2005), cert. denied, 
    549 U.S. 838
     (2006)
    (citation omitted); see also Pa.R.E. 404(b)(2).
    Here, upon review, we conclude that the trial court did not abuse its
    discretion in admitting evidence of Appellant’s prior drug dealing.          See
    Powell, supra at 419. The evidence was offered not to show Appellant’s
    propensity to commit crime, but in the context of establishing his motive for
    shooting Jeter, a rival drug dealer who supplied crack to the same
    individuals   Appellant    supplied.     See    Pa.R.E.   404(b)(2);   see   also
    Commonwealth v. Fisher, 
    769 A.2d 1116
    , 1128 (Pa. 2001), cert. denied,
    
    535 U.S. 906
     (2002) (concluding that court properly allowed testimony
    regarding appellant’s prior drug-dealing activities offered to establish his
    motive for killing).      Evidence showing that Appellant routinely provided
    drugs to Comito also formed part of the natural development of the facts
    and history of this case, see Ferguson, supra at *3; Appellant’s
    involvement in drug dealing was the reason Comito contacted him on the
    night of Jeter’s murder.
    Furthermore, the trial court instructed the jury immediately following
    the testimony, and at the conclusion of trial, regarding the proper
    consideration to give the prior bad acts evidence so that jurors would not
    regard it as evidence of Appellant’s general bad character. (See N.T. Trial,
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    8/06/13, at 105-06; N.T. Trial, 8/08/13, at 110-11).         These instructions,
    which the jury is presumed to have followed, eliminated any risk of unfair
    prejudice.     See Commonwealth v. Burno, 
    94 A.3d 956
    , 977 (Pa. 2014)
    (stating juries are presumed to follow trial court’s instructions); see also
    Commonwealth v. Sherwood, 
    982 A.2d 483
    , 497 (Pa. 2009), cert.
    denied,      
    559 U.S. 1111
       (2010)   (concluding   cautionary   instructions
    ameliorated any undue prejudice caused by introduction of prior bad acts
    evidence). Accordingly, Appellant’s third issue does not merit relief.
    In his fourth issue, Appellant claims that the trial court erroneously
    permitted the Commonwealth to introduce photographs depicting Jeter’s
    face and body into evidence. (See Appellant’s Brief, at 43-45). Specifically,
    Appellant challenges the admission of three photographs showing the
    victim’s body at the crime scene, and four photographs depicting his body at
    the autopsy (Commonwealth Exhibits 4, 6, 13, and 17-20). (See 
    id. at 44
    ).
    Appellant argues that the pictures are gruesome and inflammatory and the
    court should have excluded them because they lacked essential evidentiary
    value.      (See id.).    He asserts that any evidentiary value the photographs
    may have had was outweighed by the likelihood that they would inflame the
    passions of the jury. (See id.). This issue is waived and would not merit
    relief.
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    “A defendant must make a timely and specific objection at trial or face
    waiver of h[is] issue on appeal.” Commonwealth v. Olsen, 
    82 A.3d 1041
    ,
    1050 (Pa. Super. 2013) (citations omitted).
    Here, Appellant does not direct us to where in the substantial record
    the Commonwealth presented the photographs of the victim, but the
    Commonwealth does.         (See Appellant’s Brief, at 43-45; Commonwealth’s
    Brief, at 19). Our review of the relevant part of the trial transcripts reflects
    that the defense offered no objection to the admission of the photographs.
    (See N.T. Trial 8/05/13, at 8-11, 50-51, 55-56; N.T. Trial 8/06/13, at 43-
    46). “Such failure to offer a timely and specific objection results in waiver of
    this claim.”     Commonwealth v. Bruce, 
    916 A.2d 657
    , 671 (Pa. Super.
    2007), appeal denied, 
    932 A.2d 74
     (Pa. 2007) (citation omitted) (concluding
    that appellant waived challenge to admission of photographs where defense
    offered no objection to their admission at trial).
    Moreover, even if Appellant had properly preserved this issue, it would
    not merit relief.
    We will affirm a trial court’s admission of photographs
    absent an abuse of discretion. Further,
    When     considering  the    admissibility of
    photographs of a homicide victim, which by their
    very nature can be unpleasant, disturbing, and even
    brutal, the trial court must engage in a two-step
    analysis:
    First a [trial] court must determine whether
    the photograph is inflammatory. If not, it may be
    admitted if it has relevance and can assist the jury’s
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    understanding of the facts. If the photograph is
    inflammatory, the trial court must decide whether or
    not the photographs are of such essential evidentiary
    value that their need clearly outweighs the likelihood
    of inflaming the minds and passions of the jurors.
    Commonwealth v. Spell, 
    28 A.3d 1274
    , 1279 (Pa. 2011) (citations
    omitted).
    Here, the trial court determined that the photographs did not depict
    gruesome damage to the victim’s body and were not inflammatory.         (See
    Trial Ct. Op., at 17).   It stated that the “photographs were admissible as
    relevant evidence . . . [and] were necessary to assist the jury in
    understanding the facts of this case[.]” (Id.). Further, the court “reduced
    any potential for prejudice caused by the photographs by . . . instructing the
    jury it should not allow the photographs to inflame it.”     Spell, supra at
    1280 (citation omitted); see also Burno, supra at 977; (N.T. Trial,
    8/08/13, at 112). After review of the photographs, we discern no abuse of
    discretion in the trial court’s decision to admit them. See Spell, supra at
    1279. Accordingly, Appellant’s fourth issue would not merit relief, even if it
    we did not deem it waived.
    In Appellant’s fifth and final issue, he challenges the discretionary
    aspects of his sentence. (See Appellant’s Brief, at 45-47). Specifically, he
    claims that the trial court impermissibly relied on his lack of remorse in
    sentencing him to the statutory maximum sentence, under circumstances
    where he continues to maintain his innocence. (See id. at 29, 46-47). He
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    also claims that the sentence constitutes too severe a punishment because
    the court failed to consider mitigating factors such as his age and capacity
    for rehabilitation. (See id. at 46). This issue does not merit relief.
    Our standard of review in sentencing matters is well settled:
    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. An abuse of
    discretion is more than just an error in judgment and, on appeal,
    the trial court will not be found to have abused its discretion
    unless the record discloses that the judgment exercised was
    manifestly unreasonable, or the result of partiality, prejudice,
    bias, or ill-will.
    Commonwealth v. Clarke, 
    70 A.3d 1281
    , 1287 (Pa. Super. 2013), appeal
    denied, 
    85 A.3d 481
     (Pa. 2014) (citation omitted).
    However, “[t]he right to appeal the discretionary aspects of a sentence
    is not absolute.”   Commonwealth v. Dunphy, 
    20 A.3d 1215
    , 1220 (Pa.
    Super. 2011) (citation omitted).
    Before we reach the merits of this [issue], we must engage
    in a four part analysis to determine: (1) whether the appeal is
    timely; (2) whether Appellant preserved his issue; (3) whether
    Appellant’s brief includes a concise statement of the reasons
    relied upon for allowance of appeal with respect to the
    discretionary aspects of sentence [See Pa.R.A.P. 2119(f)]; and
    (4) whether the concise statement raises a substantial question
    that the sentence is appropriate under the sentencing code. . . .
    [I]f the appeal satisfies each of these four requirements, we will
    then proceed to decide the substantive merits of the case.
    Commonwealth v. Edwards, 
    71 A.3d 323
    , 329-30 (Pa. Super. 2013),
    appeal denied, 
    81 A.3d 75
     (Pa. 2013) (citation omitted).
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    In the instant case, Appellant has complied with the first three
    requirements because he filed a timely notice of appeal, preserved his claim
    in a timely post-sentence motion, and included a Rule 2119(f) statement in
    his brief. See 
    id.
    With respect to the fourth requirement:
    The determination of what constitutes a substantial
    question must be evaluated on a case-by-case basis.         A
    substantial question exits 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. Austin, 
    66 A.3d 798
    , 808 (Pa. Super. 2013), appeal
    denied, 
    77 A.3d 1258
     (Pa. 2013) (citations and quotation marks omitted).
    “[T]his Court has held on numerous occasions that a claim of
    inadequate consideration of mitigating factors does not raise a substantial
    question for our review.” Commonwealth v. Downing, 
    990 A.2d 788
    , 794
    (Pa. Super. 2010) (citation omitted). Accordingly, we conclude Appellant’s
    argument that the trial court failed to give adequate consideration to
    mitigating factors such as his age and ability to rehabilitate does not present
    a substantial question appropriate for our review. See 
    id.
     However, “[t]his
    Court has recognized that a claim that a sentence is excessive because the
    trial court relied on an impermissible factor raises a substantial question.”
    Commonwealth v. Crork, 
    966 A.2d 585
    , 590 (Pa. Super. 2009), appeal
    denied, 
    981 A.2d 217
     (Pa. 2009) (citation omitted). Therefore, we turn to
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    J-A30042-14
    the merits of Appellant’s claim that his sentence is excessive because the
    court impermissibly relied on his lack of remorse.
    “[I]t is undoubtedly appropriate for a trial court to consider a
    defendant’s lack of remorse as a factor at sentencing, provided that it is
    specifically considered in relation to protection of the public, the gravity of
    the offense, and the defendant’s rehabilitative needs.” Commonwealth v.
    Bowen, 
    975 A.2d 1120
    , 1125 (Pa. Super. 2009) (citation omitted).
    Here, at the sentencing hearing, the court heard a victim impact
    statement and argument from both parties, and it acknowledged the content
    of the PSI report. (See N.T. Sentencing, 11/22/13, at 3-10). It explained
    its rationale for the sentence as follows:
    . . . I have given this considerable thought since the day of
    your trial. While it wasn’t a long trial[,] it was very involved []
    and I was taken by the fact I was never involved in a homicide
    trial where the defendant had as much support throughout the
    trial as you did. . . . [E]very day you had 5 to 6 to 7 people
    come here on your behalf. That speaks volumes for you. I don’t
    think that you are without value.             I think you can be
    rehabilitated but in the absence of your admission to this crime
    I’m going to be forced, anything less than 20 to 40 years would
    not be warranted. You are convicted of a drug killing in the City
    of Easton.       The evidence was clear that you knew of a
    transaction by another individual in your turf and you killed that
    person. I don’t see any possible way for me to impose anything
    but the maximum sentence given those facts . . . . Had there
    been any other redeeming factors here other than I don’t take
    that lightly with his family support, I watched him through this
    trial and his respectful demeanor and the way he comported
    himself, but without—he has not taken blame for this yet. He
    professes his innocence and I understand that. But based on the
    evidence before me I have a drug killing that occurred, it was
    deliberate, in the City of Easton, Northampton County,
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    J-A30042-14
    Pennsylvania. The taxpayers of this county will be outraged if I
    don’t impose the maximum sentence.         And I believe the
    maximum sentence is warranted here based on these facts.
    (Id. at 11-12).
    Thus, the record reflects that the trial court did not justify its statutory
    maximum sentence based solely on Appellant’s lack of remorse. Rather, the
    court considered this factor as one of numerous sentencing factors, and it
    specifically acknowledged Appellant’s right to maintain his innocence.            The
    court’s comments at sentencing indicate that, after observing Appellant
    throughout the trial, it considered his lack of remorse “in relation to
    protection of the public, the gravity of the offense, and [his] rehabilitative
    needs.” Bowen, 
    supra at 1125
    .                  Accordingly, we conclude that the trial
    court did not abuse its discretion in imposing Appellant’s sentence.              See
    Clarke, 
    supra at 1287
    .          Appellant’s final issue on appeal does not merit
    relief.6
    Judgment of sentence affirmed.
    ____________________________________________
    6
    We note that a review of the record belies Appellant’s claim that the trial
    court failed to consider mitigating circumstances such as his age and ability
    for rehabilitation. (See Appellant’s Brief, at 46). The court specifically took
    note of Appellant’s young age and his capacity for rehabilitation. (See N.T.
    Sentencing, 11/22/13, at 9, 11). Further, because the court reviewed a PSI
    report, “we can assume [it] was aware of relevant information regarding
    [Appellant’s] character and weighed those considerations along with
    mitigating statutory factors.” Commonwealth v. Rhoades 
    8 A.3d 912
    ,
    919 (Pa. Super. 2010), appeal denied, 
    25 A.3d 328
     (Pa. 2011), cert. denied,
    
    132 S. Ct. 1746
     (2012) (citation and internal quotation marks omitted).
    Therefore, even if we were to determine that Appellant’s claim did raise a
    substantial question, we would find no merit to it.
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    J-A30042-14
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/4/2015
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