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12/09/97 COMMONWEALTH PENNSYLVANIA v. LOUIS

December 9, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS CLEVELAND, APPELLANT



Appeal from the JUDGMENT OF SENTENCE September 19, 1996, in the Court of Common Pleas of PHILADELPHIA County, CRIMINAL, No. 95-05-235-1/2.

Before: Cirillo, P.j.e., Saylor and Olszewski, JJ. Opinion BY Olszewski, J.

The opinion of the court was delivered by: Olszewski

OPINION BY OLSZEWSKI, J.:

FILED DECEMBER 9, 1997

This is an appeal from the judgment of sentence entered against appellant, Louis Cleveland, by the Court of Common Pleas of Philadelphia on September 19, 1996. We affirm.

On June 18, 1996, appellant was convicted of criminal conspiracy, carrying firearms on a public street, and three counts of aggravated assault. These charges were the result of a drive-by shooting which injured at least one person and nearly injured several others. Appellant was the driver of the car from which the shots were fired. As a result of his conviction, appellant was sentenced to 25-to-50 years' incarceration. This sentence is within the standard range of the applicable sentencing guidelines.

Appellant raises the following questions for our review:

A. DID THE COMBINED SENTENCE OF 25 TO 50 YEARS IMPOSED UPON THE APPELLANT AMOUNT TO AN ABUSE OF DISCRETION WHERE IT WAS MANIFESTLY EXCESSIVE UNDER THE CIRCUMSTANCES, AND FAILED TO TAKE INTO ACCOUNT EITHER THE APPELLANT'S AGE OR HIS REHABILITATIVE NEEDS AND RESULTED FROM AN OVEREMPHASIS ON APPELLANT'S TRIVIAL PRIOR CRIMINAL RECORD AND THE SERIOUSNESS OF THE INSTANT OFFENSE?

B. WHERE THE TRIAL COURT IMPOSED A TOTAL SENTENCE OF ONLY TEN TO TWENTY YEARS ON APPELLANT'S CO-DEFENDANT, LANCE MEARS, DID THE TRIAL COURT, BY FAILING TO ARTICULATE WHY IT IMPOSED A SENTENCE TWO AND ON-HALF TIMES GREATER ON APPELLANT, COMMIT A VIOLATION OF LAW?

C. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT FAILED TO GIVE A REQUESTED KLOIBER CHARGE WHERE THE COMPLAINANT, LAKEYA FISON , TOLD POLICE THAT SHE DID NOT GET A GOOD LOOK AT THE DRIVER OF THE VEHICLE FROM WHICH SHOTS FIRED AT HER EMANATED AND WHO THE COMMONWEALTH ALLEGED WAS THE APPELLANT?

Appellant's first claim concerns the discretionary aspects of his sentence. Imposition of sentence is committed to the sound discretion of the trial court. See Commonwealth v. Fries, 362 Pa. Super. 163, 167, 523 A.2d 1134, 1135 (1987). Appeals of discretionary aspects of a sentence are not guaranteed of right. Commonwealth v. Moore, 420 Pa. Super. 484, 490, 617 A.2d 8, 11 (1992). Appellant must satisfy two criteria before this Court will review the discretionary aspects of his sentence: (1) pursuant to Pa.R.A.P. Rule 2119(f) he must set forth in his brief a concise statement of reasons relied upon for allowance of appeal; and (2) he must articulate a substantial question as to the propriety of his sentence. Moore, (supra) , at 490, 617 A.2d at 11. A substantial question is presented where appellant advances a colorable claim that the trial court's sentence is inconsistent with the Sentencing Code or fundamentally contradicts the norms which underlie the sentencing process. Id. at 490-91, 617 A.2d at 11-12.

Although appellant has set forth the requisite statement under Rule 2119(f), we find that he has not presented a colorable argument that a substantial question exists. Appellant asserts that the sentencing court failed to consider his youth and rehabilitative needs. He further contends that the sentencing court did not "consider in a meaningful way" appellant's background and history, but rather placed "undue influence on the appellant's criminal record." Essentially, appellant's argument only concerns the weight that the sentencing court gave to legitimate sentencing factors. This alone does not raise a substantial question. See Commonwealth v. Smith, 394 Pa. Super. 164, 575 A.2d 150 (1990) (citation omitted).

In contrast, appellant's second claim raises a substantial question by alleging an unexplained disparity between his sentence and that of a co-defendant. See Commonwealth v. Canfield, 432 Pa. Super. 496, 639 A.2d 46, 49 (1994) (substantial question presented because "a disparity between sentences imposed upon co-defendants does touch upon the fundamental norms which underlie the sentencing process"). Despite the existence of a colorable claim, however, we find appellant's argument without merit.

Appellant argues that the sentencing court must provide reasons that specifically address why his sentence was two and a half times greater than that of one of his co-defendants. This is not required. It is true that the cases cited by appellant require the sentencing court to articulate reasons, on the record, which justify the imposition of disparate sentences. See Commonwealth v. Losch, 369 Pa. Super. 192, 535 A.2d 115 (1987); Commonwealth v. Sinwell, 311 Pa. Super. 419, 457 A.2d 957 (1983); Commonwealth v. Parry, 306 Pa. Super. 390, 452 A.2d 781 (1982). This is not to say, however, that the court must specifically refer to the sentence of a co-defendant. Rather, it requires that when ...


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