Com. v. Lee, R. ( 2023 )

J-A28044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD LEE :
:
Appellant : No. 846 EDA 2022
Appeal from the Judgment of Sentence Entered January 28, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003820-2019
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 13, 2023
Ronald Lee (“Lee”) appeals from the judgment of sentence imposed
following his convictions for, inter alia, third-degree murder, carrying a firearm
without a license, and possessing an instrument of crime (“PIC”).1 We affirm.
The trial court aptly summarized the factual and procedural history of
this case as follows:
Around noon on March 18, 2019, [Lee] was hanging out at
[the residence of] Wanda Ellis [(“Ms. Ellis”)] . . . in the Johnson
Homes housing development in Philadelphia. [Lee] had been
staying at [Ms.] Ellis’s house on occasion for over six months.
[Lee’s] son, Ronell Lee, came over[,] and a physical altercation
ensued when Ronell Lee tried to take a cell phone that was
charging in the kitchen. [Lee’s] girlfriend, Shakira McEachin,
claimed the cell phone was hers[,] but Ronell Lee claimed it
belonged to him.
[Lee] retrieved a gun that he had hidden under a couch
cushion and put it in his pocket. [Ms.] Ellis went into the bathroom
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1 See 18 Pa.C.S.A. §§ 2502(c), 6106, 907.
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to get dressed and heard a “pop” from the living room. [Ms.] Ellis
walked into the living room and saw [Lee] standing over his son[,]
who was lying on the floor. [Lee] told his son[, “Y]ou better stop
disrespecting my space. You should raise up out of here.” Shortly
after the shooting, Randy Jones [(“Jones”)] entered the
apartment. [Lee] gave the gun to . . . Jones. [Lee] then left [Ms.]
Ellis’s apartment.
After [Lee] fled, Ronell Lee was gasping for air and asking
[Ms.] Ellis for help. Ronell Lee dragged himself from the living
room floor to the back door. McEachin, who had left the
apartment some time prior to the shooting, called 911 from the
courtyard of the housing development. Paramedics arrived and
attempted to revive Ronell Lee but were unsuccessful. It was
determined that Ronell Lee was killed by a single shot to the
abdomen.
When [Lee] left [Ms.] Ellis’s house, he went to the home of
. . . Jones’s mother, Sheila Jones, also in the Johnson Homes
development. McEachin met [Lee] at Sheila Jones’s house where
they watched out the window and eventually called a rideshare
service to leave the property. Once [Lee] and McEachin were
gone, Sheila Jones went into her son’s room and found the
revolver that her son had hidden under his mattress. She notified
police who recovered the gun from under the mattress later that
evening.
After leaving Sheila Jones’s house, [Lee] called his cousin’s
husband, Philadelphia [P]olice [O]fficer Joseph White. [Lee]
asked Officer White to meet him at the Hub Motel on Roosevelt
Boulevard. When Officer White arrived at the hotel, [Lee]
confessed to shooting Ronell Lee. [Lee] asked Officer White to
give him some time to turn himself in. Officer White told [Lee]
that he would do so. However, as soon as Officer White left the
hotel room, he called his lieutenant and then 911.
When police responded to the Hub Motel, [Lee] and
McEachin were walking through the parking lot[,] and Officer
White pointed them out to the police. [Lee] had changed his
clothes since he had spoken with Officer White[,] and his original
clothes were later discovered in a trashcan in the hotel hallway.
While in police custody, [Lee] gave a statement admitting to the
shooting.
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****
At [a non-jury] trial, the Commonwealth presented the
testimony of[, inter alia,] . . . [O]fficer[] White, . . . and civilians
Sheila Jones, [Ms.] Ellis, and Natalie Murphy. [Lee] testified on
his own behalf [and claimed that his son was under the influence
of narcotics when the two began arguing over the cell phone, and
that, after Lee retrieved the gun, the two struggled over it, during
which the firearm inadvertently discharged and accidentally struck
Ronell Lee].
****
On November 12, 2021, following [the] non-jury trial . . .,
[Lee] was convicted of[, inter alia,] murder of the third degree . .
., carrying a firearm without a license . . ., . . . [and PIC] . . .. On
January 28, 2022, the [trial c]ourt imposed a term of [twenty] to
[forty] years [of] incarceration for murder of the third degree, a
consecutive term of two to four years [of] incarceration for
carrying a firearm without a license, and concurrent terms [of
incarceration for related offenses], for an aggregate sentence of
[twenty-two] to [forty-four] years [of] incarceration. [Lee] filed
a post-sentence motion, which the [trial c]ourt denied on March
10, 2022.
Trial Court Opinion, 5/10/22, at 1-4 (footnotes and citations to the record
omitted; paragraphs reordered for clarity). Lee filed a timely notice of appeal,
and both he and the trial court complied with Pa.R.A.P. 1925.
Lee raises the following issues for our review:
1. Should [Lee’s] judgment of sentence be vacated because the
Commonwealth did not present sufficient evidence to prove
beyond a reasonable doubt that [Lee] did not act in justifiable
self-defense when, inter alia, [Lee] was in his residence when
confronted by [the] bigger and criminal [Ronell Lee] [sic,] who
was aggressive and under the influence of narcotics and was
attempting to steal [Lee’s] property?
2. Should [Lee’s] . . . judgment of sentence [for carrying a firearm
without a license] be vacated because the Commonwealth did
not present any[,] or sufficient[,] evidence to prove beyond a
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reasonable doubt that [Lee] concealed a firearm on his person
outside of his abode?
3. Did the trial court abuse its discretion in denying [Lee’s] post
[-]sentence [m]otion because [his] conviction[s are] against
the weight of the evidence as to many of the charges[,] and a
new trial should be ordered because, inter alia, [Lee] was in his
residence when confronted by the bigger and known [victim,
Ronell Lee,] who was aggressive and under the influence of
narcotics and was attempting to steal [Lee’s] property?
4. Did the trial court abuse its discretion in sentencing [Lee] to a
maximum sentence for [m]urder in the [t]hird [d]egree with a
consecutive . . . sentence [for carrying a firearm without a
license,] when, inter alia, there was, at a very minimum, some
provocation by [Ronell Lee], when the tragic death of [Lee’s]
son constitutes punishment by itself, when [Lee] was in the
middle of his life and would not pose a danger to the
community upon release, and when [Lee] had significant
support in the community?
Lee’s Brief at 4-5 (issues re-ordered for ease of disposition).
In his first two issues, Lee challenges the sufficiency of the evidence
underlying his convictions for third-degree murder and carrying a firearm
without a license. Our standard of review for sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of
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
that of 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 a 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
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the above test, the entire record must be evaluated[,] and all
evidence actually received must be considered. Finally, the trier
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.
Commonwealth v. Lowry, 55 A.3d 743, 751 (Pa. Super. 2012) (internal
citation omitted).
Lee, in his first issue, challenges the sufficiency of the Commonwealth’s
evidence to disprove self-defense. The third-degree murder occurs upon “the
killing of an individual with malice.” Commonwealth v. Jones, 271 A.3d
452, 458 (Pa. Super. 2021), appeal denied, 282 A.3d 1122 (Pa. 2022), cert.
denied sub nom. Jones v. Pennsylvania, 143 S. Ct. 469 (2022). This Court
has stated that “malice” includes “not only particular ill will toward the victim,
but also wickedness of disposition, hardness of heart, wantonness, and
cruelty, recklessness of consequences, and conscious disregard by the
defendant of an unjustified and extremely high risk that his actions may cause
serious bodily harm.” Id. (citations omitted).
This Court has explained that self-defense can be a complete defense
or, alternatively, an “imperfect” defense:
Self-defense is a complete defense to a homicide charge if
1) the defendant reasonably believed that he was in imminent
danger of death or serious bodily injury[, kidnapping, or sexual
intercourse compelled by force or threat,] and that it was
necessary to use deadly force to prevent such harm; 2) the
defendant did not provoke the threat that resulted in the slaying;
and 3) the defendant did not violate a duty to retreat. [See] 18
Pa.C.S.[A.] § 505(b)(2) . . .. Where the defendant has introduced
evidence of self-defense, the burden is on the Commonwealth to
disprove the self-defense claim beyond a reasonable doubt by
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proving that at least one of those three elements is absent. If the
Commonwealth proves that the defendant’s belief that deadly
force was necessary was unreasonable but does not disprove that
the defendant genuinely believed that he was in imminent danger
that required deadly force and does not disprove either of the
other elements of self-defense, the defendant may be found guilty
only of voluntary manslaughter under the defense of imperfect
self-defense. [See] 18 Pa.C.S.[A.] § 2503(b).
The finder of fact is not required to believe the defendant’s
testimony that he thought that he was in imminent danger and
acted in self-defense. Disbelief of the defendant’s testimony,
however, is not sufficient to satisfy the Commonwealth’s burden
to disprove self-defense absent some evidence negating self-
defense.
Id. (some internal citations omitted). Furthermore, “[p]roof that the
defendant was able to safely retreat [may be] sufficient to satisfy the
Commonwealth’s burden of disproving both self-defense and imperfect self-
defense.” Id. (citing, inter alia, 18 Pa.C.S.A. § 505(b)(2)(ii)). Lastly,
the defense of self-defense necessarily requires that the appellant
admit that the shooting was intentional in order to protect one’s
self. . . . However, when [a defendant takes] the stand and
denie[s] that the shooting was intentional and, instead, said it was
caused by mistake or accident . . ., he denie[s] that the act was
done intentionally in defense of self. Under such circumstances,
therefore, a defense of self-defense is not available to such a
person because it is mutually exclusive of the defense of accident
or mistake.
Commonwealth v. Harris, 665 A.2d 1172, 1175 (Pa. 1995) (citations
omitted).
Lee argues the evidence was insufficient to disprove his assertion of self-
defense. Lee maintains that his “actions were justified[,] even if there was
not a specific self-defense theory of the case presented.” Lee’s Brief at 18.
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According to Lee, he “presented evidence that he was confronted by an
aggressive individual on drugs while [he, Lee,] was in his[, Lee’s,] residence.
The ensuing struggle constitutes justification,” and “[t]here was not sufficient
evidence presented that [Lee] did not act in self-defense or, at most, mistaken
self-defense.” Id. at 27.
The trial court considered this issue and determined that it is meritless:
Here, self-defense was never at issue. Defense counsel
made this clear during his closing argument:
I’m not arguing self-defense to this [c]ourt because I
don’t believe that there is a self-defense in this particular
case. There is no evidence that sustains Ronell Lee having
any kind of weapon, whether it was a firearm or anything
else that could be characterized as a weapon. So, we’re not
arguing self-defense in this case.
N.T.[,] 11/12/[21,] at 195.
Moreover, during his testimony at the trial, [Lee] never
contended that he shot his son in self-defense. Rather, he
consistently maintained that his son was accidentally shot when
the gun went off during a struggle. [Lee] even denied that his
finger was on the trigger of the weapon when it fired. [See] N.T.[,]
11/12/[21,] at 76-79[,] 159-60. Where, as here, a defendant
claims that a shooting was accidental, self-defense is not at issue
in the case. . . ..
Because the defense did not raise a claim of self-defense
during the trial, the Commonwealth was under no obligation to
present evidence to disprove that defense. No relief is due.
Trial Court Opinion, 5/10/22, at 5.
Following our review, we conclude that Lee failed to present evidence of
self-defense, or imperfect self-defense, and, accordingly, the Commonwealth
was not required to disprove either defense. At trial, Lee repeatedly testified
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that he did not intend to shoot Ronell Lee and denied that he had shot his son.
Lee testified, “The gun was never to hurt my son or to fire off, shoot, none of
that.” N.T., 11/12/21, at 77. He further stated that he retrieved the gun and
showed it to Ronell Lee, though he did not threaten his son, and it was while
“we was tussling [that] the gun goes off . . ..” Id. at 79-80. Lee further
testified that, “[a]fter the gun goes off, my son, he went down. I went down[,]
but not to the floor, because when the gun goes off, I ain’t know what
happened. I just know the gun went off.” Id. at 81. Lee denied that he
pointed the firearm at his son and shot him. See id. at 97. He also denied
he had the intention to “cause any kind of harm” to Ronell Lee. See id. Lee
additionally denied that he had cocked the gun or put his finger on the trigger.
See id. at 148. Lastly, Lee testified that “[N]one of this was, like, me
intentionally to use no gun for my son to get hurt, to get killed, to get shot.”
Id. at 191. Thus, Lee sought to establish, by his testimony, not that he
intentionally shot his son based on the reasonable or unreasonable belief that
he was in imminent danger; rather, he sought to establish the defense of
accident. See Harris, 665 A.2d at 1175 (holding that the defense of self-
defense necessarily requires that the appellant admit that the shooting was
intentional in order to protect oneself, and that the defense of accident is
mutually exclusive with self-defense). Accordingly, the Commonwealth was
not obliged to put on evidence to disprove self-defense. Thus, Lee’s first issue
merits no relief.
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Lee next challenges the sufficiency of the evidence underlying his
conviction for carrying a firearm without a license. A person who “carries a
firearm in any vehicle or any person who carries a firearm concealed on or
about his person, except in his place of abode or fixed place of business,
without a valid and lawfully issued license” commits the offense of carrying a
firearm without a license, a third-degree felony. 18 Pa.C.S.A. § 6106(a)(1).
Our Supreme Court has defined a “place of abode” as follows:
When interpreting a statute, words that are not defined in
the statute shall be construed according to their common and
approved usage. [See] 1 Pa.C.S.[A.] § 1903(a). Black’s Law
Dictionary defines “place of abode” as “[o]ne’s residence or
domicile.” Black’s Law Dictionary 1149 (6th [ed.] 1991). Black’s
further defines domicile as “a person's legal home,” [id. at] 485,
and residence as a “place where one actually lives or has a home;
a person’s dwelling place or place of habitation; an abode; house
where one’s home is; a dwelling house.” [Id. at] 1309. Finally,
Black’s defines dwelling as “the house or other structure in
which a person or persons live; a residence; abode; habitation;
the apartment or building, or group of buildings, occupied by a
family as a place of residence. Structure used as a place of
habitation.” [Id. at] 505 (emphasis added). In addition, the
Dictionary of Modern American Usage defines “place of abode” as
“a pretentious way of referring to someone’s home or house.”
The Dictionary of Modern American Usage 5 (1998) (emphasis in
original).
Commonwealth v. Ortiz, 738 A.2d 403, 404–05 (Pa. 1999).
Lee contests the sufficiency of the evidence for his firearms conviction,
specifically, because “[t]here was no evidence that [he] ever concealed the
firearm at issue once [he] left his residence.” Lee’s Brief at 29. Lee maintains
he brought the firearm into his residence more than five days before the
shooting, and, because the bill of information specified that the offense
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occurred “on or about March 18, 2019, the day of the shooting,” the
information was insufficient to allow him to “prepare[] to address this issue”
at trial. Id.The trial court considered this issue and determined it merited no relief.
As that court explained:
In this case, [Lee] failed to identify any surprise or prejudice
occasioned by the difference of only a few days from the date in
the information and the date of the alleged violation. The alleged
violation occurred when [Lee] secured and transported the murder
weapon to the location of the murder, and therefore, was an
integral part of the events at issue in the murder case. There was
never a claim made that the date of the firearms offenses was an
essential element of the crimes charged. Moreover, the explicit
qualification in the information that the offense occurred “on or
about” the date alleged alerted [Lee] to the possibility of the
discrepancy of a few days such as occurred here.
Accordingly, as [Lee] admitted to carrying the gun used to
kill his son concealed in his pocket outside of his home around five
days from the day of the murder, without a license to do so, the
evidence was legally sufficient to support his conviction . . ..
Trial Court Opinion, 5/10/22, at 8. Additionally, the Commonwealth contends
that Lee “admitted at trial that[,] on two different occasions[,] he had
concealed a gun on his person,” the first of which was when Lee “put a gun in
his pocket moments before shooting his son in [Ms.] Ellis’s home, which was
not his place of abode.” Commonwealth’s Brief at 9 (citation omitted).
Following our review, we conclude the evidence, in the light most
favorable to the Commonwealth as the verdict-winner, was sufficient to prove
that Lee carried a concealed firearm outside of his place of abode. The
shooting occurred at 1810 North 25th Street, the residence of Ms. Ellis. See,
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e.g., N.T., 11/12/21, at 49. Ms. Ellis testified that nobody else lived at the
property with her. See N.T., 11/10/21, at 126. She described Lee’s girlfriend,
Shakira McEachin, as an unofficial “home care aide,” and stated that Lee was
“just a neighbor. He lives in the neighborhood,” in an apartment behind her
own apartment. Id. at 132. Occasionally, Lee or McEachin would stay over
at Ms. Ellis’s apartment. See id. at 132-33. Ms. Ellis emphasized however,
that at the time of the shooting, she lived there alone; and no one was staying
with her “at the time this incident happened,” either permanently nor
temporarily. Id. at 164-65.2 While at Ms. Ellis’s residence, Lee took the
firearm out from under a couch cushion and put it in his pocket, thereby
concealing it. See N.T., 11/12/21, at 76-77 (Lee testifying that he took the
gun from the couch and put it in his pocket); see also id. at 147 (Lee
testifying that he put the gun in his sweatpants pocket).3 As the evidence, in
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2Further, Lee gave a statement to police on the night of the incident in which
he claimed to live with his grandmother. See N.T., 11/12/21, at 100-01.
3 We are mindful that Ms. Ellis’s testimony at the preliminary hearing was less
than a paragon of clarity in that she stated then that Lee and McEachin had
stayed with her for seven months prior to March 18, 2019. See, e.g., N.T.,
11/10/21, at 169 (Ms. Ellis testifying at trial, contrary to her prior testimony
at the preliminary hearing, that she did not remember Lee and McEachin
staying with her for seven months prior to March 18, 2019). We also note
that Lee testified that he lived with Ms. Ellis at the time of the shooting. See
N.T., 11/12/21, at 49. However, our standard of review prohibits us from re-
weighing the evidence and substituting our judgment for that of the fact-
finder; further, the trier of fact passes on credibility and is free to believe all,
part, or none of the evidence. See Lowry, 55 A.3d at 751.
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the light most favorable to the Commonwealth, established that Lee did not
live with Ms. Ellis at the time he placed the firearm inside his sweatpants
pocket, the evidence was sufficient to prove that Lee was outside of his place
of abode when he concealed the weapon. Accordingly, Lee’s second issue
merits no relief.4
In his third issue, Lee asserts that his convictions for third-degree
murder, PIC, and “the main firearms convictions” were against the weight of
the evidence. As Lee addresses the weight of the evidence for his convictions
together, we do the same. We have articulated our standard of review for
weight claims as follows:
The essence of appellate review for a weight claim appears
to lie in ensuring that the trial court’s decision has record support.
Where the record adequately supports the trial court, the trial
court has acted within the limits of its discretion.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
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4 As we resolve this issue based on the sufficiency of the evidence showing
that Lee concealed a firearm about his person the day he shot Ronell Lee, we
need not address Lee’s assertion that, because of the vagueness of the bill of
information, he was unable to prepare a defense to evidence showing he
concealed a firearm about his person five days prior to the shooting.
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review applied by the trial court. Appellate review of a weight
claim is a review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the
evidence.
Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017)
(citation omitted). To successfully challenge the weight of the evidence, a
defendant must prove the evidence is so tenuous, vague and uncertain that
the verdict shocks the conscience of the trial court. See id.Lee contends his convictions were against the weight of the evidence,
as “there was an unrebutted self-defense theory of the case presented[;]
because [Lee] did not possess the instrument at issue with intent to employ
it criminally[;] and because there was no evidence that [he] concealed a
firearm when it was removed from the residence where the shooting
occurred.” Lee’s Brief at 15. Specifically, Lee argues the weight of the
evidence is against a conviction for third-degree murder “because of
justification,” and, once that charge is vacated, the PIC conviction must also
be vacated. See id. at 17.
The trial court considered Lee’s weight claims vis-à-vis his third-degree
murder and PIC convictions, and it determined they were meritless because,
inter alia, “justification was not a defense asserted in this case.” Trial Court
Opinion, 5/10/22, at 9. Based on our review, we discern no abuse of discretion
by the trial court. Lee challenges the weight of the evidence for the murder
and PIC convictions based on his “unrebutted self-defense theory of the case.”
Lee’s Brief at 15, 17. However, as we noted above, Lee did not present self-
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defense evidence at trial, and, moreover, he expressly denied he intended to
shoot his son. Accordingly, his assertion that he presented “unrebutted self-
defense” evidence is meritless. Therefore, his challenges to the murder and
PIC convictions, based on self-defense, warrant no relief.
Lee, additionally, challenges the carrying a firearm without a license
conviction based on the weight of the evidence because “there was no
evidence that [he] ever concealed the firearm at issue once [he] left his
residence,” and, instead, he testified that he brought the firearm to his
residence five days before the shooting. Id. at 17. As we explained above,
however, Ms. Ellis testified unequivocally that Lee lived neither permanently
nor temporarily with her at the time of the shooting. Just before the shooting,
Lee, while in her apartment, concealed the firearm in his sweatpants pocket.
Lee’s argument is, essentially, that the trial court should have disbelieved Ms.
Ellis’s testimony and instead believed his. However, a new trial should not be
granted because of a mere conflict in the testimony or because the judge on
the same facts would have arrived at a different conclusion. See Windslowe,
158 A.3d at 712.5 Lee has thus failed to show the trial court abused its
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5 We further reiterate, as noted above, that Lee had given a prior inconsistent
statement to police in which he stated he lived with his grandmother, not Ms.
Ellis. Moreover, while Ms. Ellis’s prior testimony at Lee’s preliminary hearing
could be interpreted inconsistently with her trial testimony, any conflict was
for the fact-finder to resolve.
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discretion in concluding that its verdict was not so tenuous, vague and
uncertain that it shocks the conscience. See id. He is therefore due no relief.
In his last issue, Lee challenges the discretionary aspects of his
sentence. This Court has explained that challenges to the discretionary
aspects of sentencing are not appealable as of right, but, rather,
an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code.
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa. Super. 2019)
(citation omitted; brackets in original); see also 42 Pa.C.S.A. § 9781(b).
Regarding the requirement that an appellant raise a “substantial
question,” this Court has explained:
A substantial question exists where an appellant sets forth a
plausible argument that the sentence violates a particular
provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process.
Commonwealth v. Brown, 249 A.3d 1206, 1211 (Pa. Super. 2021) (internal
citation omitted). “The determination of whether a particular issue raises a
substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004). Where
an “appellant argues that the lower court inappropriately applied correct
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information when imposing sentence[, he or she] is effectively asking this
[C]ourt to substitute [its] judgment for that of the lower court, [and has
thereby] failed to present us with a substantial question . . ..”
Commonwealth v. Rivera, 637 A.2d 1015, 1017 (Pa. Super. 1994).
Here, Lee timely appealed from the March 10, 2022 denial of his post-
sentence motion. See Notice of Appeal, 3/19/22. Further, Lee technically
complied with Pa.R.A.P. 2119(f) by including a separate section of his brief
setting forth the reasons underlying his petition for an allowance of appeal
regarding the discretionary aspects of his sentence. See Lee’s Brief at 30-32.
We next consider whether Lee properly preserved his issue below, and, if so,
whether he has presented a substantial question for our review.
In his Rule 2119(f) statement, Lee argues his sentence “exceeds a
justifiable sentence needed to protect society[,] especially because [he] was
41 years of age at the time of sentencing”; the trial court ignored his “potential
for rehabilitation”; he did not “exhibit the coldness of disposition associated
with malice” in shooting his son; and, though he concedes his sentence is a
“guideline sentence,” he maintains “the guidelines are extremely broad,”
considering he waived his right to a jury trial and received a consecutive
sentence for the carrying firearms without a license conviction. See Lee’s
Brief at 31-32. However, the only sentencing issues Lee raised in his post-
sentence motion were that the sentence for the third-degree murder
conviction was excessive given: his prior record score of two and lack of “prior
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convictions for the commission of any violent crime”; and the fact that he
“presents no threat to the community.” Lee’s Post-Sentence Motion, 2/2/22,
at ¶¶ 5(a)-(b). Lee raised the same grounds vis-à-vis his consecutive
sentence for carrying a firearm without a license. See id. at ¶ 5(c).6 Lee’s
preserved challenge is thus limited to his claim of excessiveness based on his
prior record score of two, lack of prior convictions for violent offenses, and his
asserted lack of threat to the community.7 This does not raise a substantial
question. Lee does not argue that the trial court violated a particular provision
of the Sentencing Code or that his sentence is contrary to the fundamental
norms underlying the sentencing process. See Brown, 249 A.3d at 1211
(stating that an appellant must set forth a plausible argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing process). Instead, Lee
asks this Court to substitute its judgment for the trial court’s, and has, thus,
failed to raise a substantial question. See Rivera, 637 A.2d at 1017.
____________________________________________
6 Lee filed a second post-sentence motion two days later that was identical in
this respect to the first. See Lee’s Post-Sentence Motion, 2/4/22.
7 Cf. Padilla-Vargas, 204 A.3d at 975 (requiring that challenges to the
discretionary aspects of sentencing be preserved at sentencing or in a post-
sentence motion); Pa.R.A.P. 302(a) (providing that issues not raised below
are waived and may not be raised for the first time on appeal).
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J-A28044-22
Accordingly, we decline to review Lee’s challenge to the discretionary aspects
of his sentence.8
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2023
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8 Even if Lee raised a substantial question, he would be due no relief. Our
standard of review for such issues is well-settled: “[S]entencing is vested in
the discretion of the trial court, and will not be disturbed absent a manifest
abuse of that discretion[, which] involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.” Brown, 249 A.3d at 1211. Here, the
trial court, having reviewed a presentence investigation report, imposed a
guideline-range sentence. See N.T., 1/28/22, at 4-5; accord Trial Court
Opinion, 5/10/22, at 12-13; see also Commonwealth v. Akhmedov, 216
A.3d 307, 329 (Pa. Super. 2019) (stating that “[w]here the sentencing judge
had the benefit of a presentence investigation report, it will be presumed that
he or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors”). Additionally, the trial court considered the required sentencing
factors, acknowledged that Lee would not be a threat to the public, but also
explained that its sentence took into account other statutory factors, including
the gravity of the offense, specifically, the fact that Lee introduced a gun into
a dispute following his son “disrespect[ing] him,” and that he left his victim
“lying there mortally wounded without rendering aid, without calling for help[,]
and just taking off in an effort to protect himself, that’s just depraved conduct
. . ..” N.T., 1/28/22, at 64. Lee has failed to show a manifest abuse of
discretion by the trial court.
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