J-A10002-26 2026 PA Super 178
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ELIJAH SHARPE : No. 3061 EDA 2024
Appeal from the Judgment of Sentence Entered June 7, 2024
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0008684-2023
BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*
OPINION BY STABILE, J.: FILED AUGUST 6, 2026
This Commonwealth appeal concerns the reasonableness of a downward
departure sentence far below the mitigated range of the sentencing
guidelines. In 2024, Elijah Sharpe (Appellee) pleaded guilty to numerous drug
related offenses which he had committed while already serving probation in
three other similar cases. The standard range under the statutory sentencing
guidelines was a prison term of eight to 15 years, with a minimum mitigated
range of seven years. However, the Court of Common Pleas of Philadelphia
County (trial court) imposed an aggregate prison term of only 11.5 to 23
months, with immediate parole to house arrest, followed by 10 years of
probation. The Commonwealth contends that this extreme downward
departure was unreasonable because the record as a whole does not reflect a
proper consideration of the facts of the crime and character of the offender.
* Former Justice specially assigned to the Superior Court.
J-A10002-26
Finding merit in the Commonwealth’s claim, we vacate the judgment of
sentence and remand for resentencing.
The underlying case facts are not in dispute. Appellee, Elijah Sharpe,
was a prominent player in a drug trafficking organization that operated in the
Philadelphia neighborhood of Kensington, which is well-known to be one of
the largest and most lethal markets for fentanyl in Philadelphia. During the
summer and early fall of 2023, the Pennsylvania State Police and Office of the
Attorney General were authorized to wiretap telephone calls between Appellee
and other members of a suspected conspiracy to distribute narcotics in
Kensington.
Appellee can be heard in the intercepted calls directing the distribution
and sale of fentanyl and cocaine. That is, these calls demonstrated that
Appellee was not a lower-level member of the enterprise. He was instead in
control of his own territory within the city block bordered by Shelbourne Street
and Hilton Street. Video surveillance of Appellee during this period also
showed him both picking up drugs from distribution centers and then
supplying “stash houses” in his territory with that contraband. Two of
Appellee’s most popular products were baggies of fentanyl “stamped” with the
brand names, “Death Row” and “Theraflu.” 1
1 The fentanyl packaged in the baggies was mixed with xylazine, an animal
tranquilizer associated with an increased risk of fatal overdose when ingested by humans. See https://www.cdc.gov/overdose-prevention/about/what-youshould-know-about-xylazine.html (last visited June 8, 2026).
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On October 4, 2023, police simultaneously executed search warrants at
eight locations in Kensington where Appellee and his associates had been
operating. At the three locations directly linked to Appellee, police seized 266
grams of fentanyl/xylazine, 50 grams of methamphetamines, and 236 grams
of cocaine and crack cocaine. As evidenced by their volume and packaging
(enough for thousands of individual doses), these substances were intended
for street sale. See generally N.T. Plea Hearing, 3/22/2024, at 15-17
(recitation of factual predicate of guilty plea). Police also recovered at the
residences a small arsenal consisting of an AK-47 Rifle, a 12-gauge shotgun,
pistols, ammunition, and other firearm accessories. See Trial Court 1925(a)
Opinion, 4/3/2025, at 6-7 (summarizing record facts).
The day after the searches, Appellee and seven co-defendants were
criminally charged. Appellee ultimately entered a non-negotiated guilty plea
to one count each of possession with intent to deliver (PWID) (35 Pa.C.S.A. §
780-113(a)(30)), criminal conspiracy (18 Pa.C.S.A. § 903), and corrupt
organizations (18 Pa.C.S.A. § 911). The trial court ordered a presentence
investigation report (PSI) and a mental health evaluation. Both parties filed
presentence memoranda.
At Appellee’s sentencing hearing on June 7, 2024, the trial court and the
parties agreed that the offense gravity score was 14 for the PWID conviction,
and 8 for the corrupt organizations conviction. The parties agreed further that
Appellee’s prior record score was 2. Based on those scores, the parties
stipulated that the applicable sentencing guidelines for the PWID conviction
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were eight to 15 years in the standard range, plus one year in the aggravated
range, or minus one year in the mitigated range. As to the corrupt
organizations count, the guidelines range was 15 to 20 months, plus or minus
nine months. See N.T. Sentencing Hearing 6/7/2024, at 5-7.2
The Commonwealth recommended a standard range prison sentence of
nine to 20 years. The severity of this recommendation was intended to be
commensurate with Appellee’s status as a high-ranking member in his criminal
organization, as well as Appellee’s apparent disregard for human life. The
Commonwealth emphasized that Appellee had personally directed the sale and
distribution of narcotics, namely fentanyl, despite his full knowledge of the
dangers it posed. In fact, Appellee had himself ceased abusing Percocet pills
because he feared they could contain fentanyl. See id., at 8-9.
The specifics of Appellee’s role were gleaned in part from intercepted
phone calls in which he could be heard instructing his subordinates on what
to sell, where to sell it, and how to deal with competitors. As shown in a
conversation with a co-defendant, Frank Myers, Appellee was especially keen
to hand out “samples” of his products in areas where rival upstarts were
encroaching on his territory:
[Appellee]: Let them . . . give out samples. Let them do all that.
By Friday we gonna be loaded up. We gonna hit em with samples
all day that day.
2 The offense gravity score for the conspiracy conviction was 14, carrying a
standard guidelines range of 90 months. This count was merged with the PWID conviction for purposes of sentencing.
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[Myers]: Alright, he made them . . . draw.
[Appellee]: Man f**k them . . . yo.
[Myers]: I already know.
[Appellee]: That s*** is gonna start a whole war bro. I seen young
bull over there gone do something. That s*** is gonna start a
whole war. That's gonna shut both us down.
Commonwealth’s Sentencing Memorandum, 5/15/2024, Exhibit C.
In another call with a different conspirator, Appellee was amused by
the fact that the potency of his product, “Death Row,” would likely kill one of
his customers:
[Appellee] - Aright I'm about to send my girl. I'm about to send
m[y] girl up there . . . to give you them samples cause I'm tagging
up right now.
[Unidentified] - Aright [okay].
[Appellee] - That's what I'm sayin that shit. That shits some
bang though bro so be careful with that shit. Ima give you
um.
[Unidentified] - I got you. Aright you gonna give me two different
jawns?
[Appellee] - Yea ima give you two. Ima give you two different
stamps. Ima give you uh its like uh two, three bags. Ima give you
like three bags of the Death row and three bags of Theraflu and
you tell me which one you want. Which one better.
[Unidentified] - Aright [okay].
[Appellee] - I know the, I know the Death row gonna be the
bang bro its gon probably put somebody down.
[Unidentified]- (laughs) Bro that's crazy.
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[Appellee] - You gonna see for yourself ima tell everybody down
the way.
Id., at Exhibit H (emphasis added).
Appellee’s culpability was further illustrated by posts he had made on
his Instagram account, “IamKensington.” One photo, showing a group of his
customers in the midst of drug use, contains a caption in which Appellee
perversely thanks them for his livelihood. The caption reads, “I love y’all cuz
without y’all ain’t no me.” Commonwealth’s Sentencing Memorandum,
5/15/2024, Exhibit J. In another photo bearing the caption, “In The
Trenches,” one of Appellee’s customers is standing on a sidewalk with his
possessions strewn on the ground in front of him; Appellee is shown next to
the customer, grinning as he uses both hands to fan stacks of currency. See
id., at Exhibit K.
Defense counsel attempted to downplay Appellee’s authority in the drug
ring by stressing that he was only 23 years old; he had demonstrated high
intelligence; and he was remorseful. Counsel then reviewed Appellee’s
employment history, including his work as a “flagger” for All State Traffic
Control, and as a home health aide for a relative. In addition, Appellee had
accepted responsibility by waiving a jury trial, and a preliminary hearing in
this case. See N.T. Sentencing Hearing, 6/7/2024, at1 3-17. It was defense
counsel’s view that a lengthy prison sentence would only turn Appellee into a
“kingpin,” and that it would be more beneficial to him, and to his community
at large, to impose a sentence of 23 months of house arrest, followed by
probation. See id.
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Both the Commonwealth and the defense had agreed at the outset of
the sentencing hearing that Appellee’s guilty pleas reflected his acceptance of
responsibility for his crimes, which would be a mitigating sentencing factor.
However, during his allocution, Appellee took far less of the blame for his
conduct than the plea would suggest. See Sentencing Hearing, 6/7/2024, at
18. He began by apologizing for his “mistake,” see id., but quickly segued to
portraying himself as an innocent victim of circumstance:
[Appellee]: They had me under surveillance for a whole year. I
ain’t had one direct contact, one direct sub. They sent -- they sent
cops in. I told the cops I don’t sell drugs. I -- I don’t know
what -- what’s more than -- what more can I say if I don’t sell
drugs. Like I feel like I was targeted and now I’m being -- they
try to use my Instagram. I’m from Kensington. My family from
Kensington. I know -- I know everybody in -- I just grew up
down there. Don’t mean I’m running nothing.
[I] don’t got the power to force somebody to sell drugs or
force somebody to do this and do that. But that’s what
they’re trying to make me seem like. Today, they going to do
that cause they don’t want to be behind them walls away from my
kids. So like – it don’t -- it don’t make no sense to me. Now, I’m
holding up money now it’s -- it’s just from drugs. I work hard for
my money. I work -- I came in every week with my paystubs. And
I was going to school. And I got time to run the streets? I was
working Monday to Friday. I went to school Monday to
Thursday. Then I got three kids with three different girls. I
don’t got time to run the streets. How they saying they was
watching me for a year. I would have been locked up. And -- and
they got phone taps four to five days before my arrest. This case
wasn’t really making sense. But I know -- fighting these
cases take time and money but I don’t got. I got a family. I
got my aunt. I got my -- my -- my nieces. My sons. My daughter.
I ain’t even get to see my daughter. She was born two days after
I got locked up.
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It’s just -- it’s a lot of stuff that’s going on that I know I couldn’t
sit here and fight this. So I’m -- I’m willingly and respectfully
saying on my part what I did wrong but to -- try and accuse me
and saying I’m -- I’m the one running everybody and I’m telling
him to sell drugs and I’m telling him to do that. That -- that’s
not me. I can’t force nobody to -- to do anything. If -- if
anything I’d just say I was around the wrong crowd. That’s
it. I -- I -- selling the drug the whole time. Here I didn’t. I
was working every day.
I was going to school every day. I got my -- got my permit. You
got -- you got proof of this. You got proof of this. Every month I
was coming in here checking it every month. Even the day you
didn’t come to my court the court room. I bring my paystubs with
my -- with my note from school. Now they trying to send me to
prison for nine -- nine to 20 years away from my son. Off -- off of
phone taps. And -- and I ain’t get -- when they arrested me. They
ran in my aunt crib.
They ran -- I mean they ran in my aunt house. They ran in my
house. Nothing. Nothing was -- was in those houses. And those is
direct -- those is -- she’s like my mom so it’s like they run in her
house looking for stuff. They can run in my house they didn’t find
nothing. And they took stuff -- they had -- had no business taking.
It’s just the whole case was crazy. And it doesn’t make no
sense. A lot -- a lot of illegal stuff happened in this case.
****
[Appellee]: That’s all. When I came -- when I came home. You let
me home my last time. I did everything by the book. I never had
a hot urine. I never had nothing with my PO’s. And I -- if I had to
reschedule, I rescheduled. Anything that you want to answer to I
did. Brother Jay. You know how I did with Brother Jay. He came
here every court room. Talks to me every day how good I was
doing in his program. That you let me out on house arrest early.
I did -- I did only -- you let -- you sentenced me like I (inaudible)
after only six months cause of how good I was doing. I got the
(inaudible) position. There’s a lot of things they ain’t going to tell
you. They just going to tell you that I was running this or running
that and I they want me to go up state for nine to ten years. But
-- that’s ---8-J-A10002-26
[Trial Court]: I’m just looking through the paystubs that I received
from the times that you did come in. And I did see some. And I
also saw that you -- got your [commercial driver’s license] as well.
[Appellee]: I got my permit -- I’m two – when they arrested me I
was two hours away from getting my -- my real license.
[Trial Court]: Right.
[Appellee]: I got to take the state exam. And -- like I said I had a
lot of good things going. I ain’t -- I’m not just somebody that I
don’t think I should be [incarcerated] for . . . nine to 20 years and
just throw away the key. I’m home and I’m almost 40. That’s all.
Like I said, I’m sorry for being in your courtroom again. It won’t
happen again. I just -- this particular case, I just feel like I was
just around the wrong – the wrong time and people and
thing.
Id., at 18-22 (emphasis added).
The trial court gave little credence to Appellee’s assertion of innocence,
finding that he was “entrenched in this corrupt organization.” Id., at 26. Yet,
the trial court found that there was enough evidence to justify a downward
departure from the mitigated range of the sentencing guidelines. The trial
court noted that Appellee had nearly obtained a commercial driver’s license,
and that he had likely suffered from post-traumatic stress disorder while being
held in custody for seven months in the present case.
Moreover, the trial court observed that Appellee had a difficult
upbringing, as his mother went to prison shortly after his birth and his father
then abandoned him, leaving Appellee to be raised by his grandparents until
the age of 10. Between the ages of 12 and 18, Appellee was placed in a series
of juvenile shelters, where he was physically abused. At some point during
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that period, Appellee sustained five gunshot wounds, and apparently made a
full recovery. See Trial Court 1925(a) Opinion, 4/3/2025, at 21.
The trial court stressed further that Appellee is the father of three young
children, who would benefit from having Appellee obtain gainful employment.
The trial court questioned whether Appellee was genuinely remorseful, but
nevertheless stated that Appellee’s “acceptance of responsibility,” his age, and
the “nonviolent” nature of his offenses warranted a sentence below the
mitigated range of the sentencing guidelines. See Sentencing Hearing,
6/7/2024, at 27-28. Appellee was then in effect sentenced to house arrest,
followed by 10 years of probation. See id.
At the time Appellee was charged and arrested in the present case, he
was serving probation in three cases (docketed at case numbers CP-51-CR8021-2018, CP-51-CR-6852-2019, CP-51-CR-2992-2021), all of which
involved the possession and intended sale of drugs. Appellee was found to be
in direct violation of his probation in those cases. The probationary sentence
imposed in the present case was made concurrent to the sentences imposed
in those earlier cases. See id., at 32.3
The trial court explained that a long probationary period was justified
because, as to Appellee’s prospects for rehabilitation, the court’s “confidence
level” was “not as high” as it was at the time of his prior sentencing. Id., at
3 Appellee was also twice adjudicated delinquent. As an adult, Appellee had been arrested on 11 occasions prior to being arrested in the present case, accumulating convictions in four of those prior matters.
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30. The trial court was also “not sure” whether Appellee was “done selling
drugs yet,” or whether he was genuinely remorseful and “ready to seriously
move in a different direction.” Id., at 27-29.
The Commonwealth filed a timely motion for reconsideration on the
ground that the sentence was excessively lenient, constituting an
unreasonable downward departure from the statutory guidelines range. The
motion was denied by operation of law, and the Commonwealth timely
appealed. The Commonwealth now asserts a single claim in its brief – whether
the trial court “abuse[d] its discretion in imposing an unreasonably lenient
sentence, which was a departure below the sentencing guidelines.[.]”
Commonwealth’s Brief, at 3.
The sole issue raised in the present case concerns a challenge to the
discretionary aspects of Appellee’s sentence. “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 that discretion.”
Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995).
“[C]hallenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citations omitted).
Accordingly, as the Commonwealth’s claim relates to a discretionary
aspect of a sentence, we must first determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant's brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
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allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “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.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
Here, the Commonwealth successfully has invoked this Court’s
discretionary jurisdiction. The claim now being raised was preserved in a postsentence motion and a Rule 1925(b) statement; the Commonwealth timely
filed a timely notice of appeal; and a Rule 2119(f) statement was included in
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its brief. Further, the Commonwealth’s claim raises a substantial question.
See Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. 1999) (substantial
question presented in claim that trial court unreasonably sentenced defendant
below the mitigated guideline range); Commonwealth v. Childs, 664 A.2d
995, 996 (Pa. Super 1995) (same).
We now turn to the merits of the Commonwealth’s contention that the
trial court abused its discretion by sentencing Appellee to a term well below
the mitigated range of the sentencing guidelines.
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S.[A.] § 9721(b), [including] the protection of the
public, [the] gravity of offense in relation to impact on [the] victim and
community, and [the] rehabilitative needs of the defendant.”
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted and formatting altered). A sentence may be deemed unreasonable
on appeal, notwithstanding the existence of mitigating evidence, if the trial
court has disregarded those general standards. See generally
Commonwealth v. Walls, 946 A.2d 957, 964 (Pa. 2007) (“[A] sentence may
. . . be unreasonable if the appellate court finds that the sentence was imposed
without express or implicit consideration by the sentencing court of the
general standards applicable to sentencing found in Section 9721, i.e., the
protection of the public; the gravity of the offense in relation to the impact on
the victim and the community; and the rehabilitative needs of the
defendant.”).
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“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court's
consideration of the facts of the crime and character of the offender.”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citing
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)). The
balancing of the sentencing factors is the sole province of the sentencing
court, which has the opportunity to observe the defendant and all witnesses
firsthand. See Commonwealth v. Kurtz, 294 A.3d 509, 536 (Pa. Super.
2023), affirmed, 348 A.3d 133 (Pa. 2025).
To justify a downward departure from the guideline sentence
recommendation, the trial court may consider numerous factors, including
those in the following non-exhaustive list enumerated in the statutory
guidelines:
(i) Nature and circumstances of the offense:
(A) Neither caused nor threatened serious harm.
(B) Conduct substantially influenced by another person.
(C) Acted under strong provocation.
(D) Substantial grounds to justify conduct.
(E) Role in offense.
(F) Purity of controlled substance.
(G) Abuse of position of trust.
(H) Vulnerability of victim.
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(I) Temporal pattern.
(J) Offense pattern.
(K) Multiple offenses in a criminal incident.
(ii) History and character of the person:
(A) No history of criminal conduct.
(B) Substantial period of law-abiding behavior.
(C) Circumstances unlikely to recur.
(D) Likely to respond affirmatively to probation.
(E) Imprisonment would entail excessive hardship.
(F) Accepts responsibility.
(G) Provides substantial assistance.
(H) Compensated victim or community.
(I) Character and attitude.
(J) Treatment for substance abuse, behavioral health issues, or
developmental disorders or disability.
204 Pa. Code § 303a.6(f)(1).
On review, this Court cannot reweigh sentencing factors and impose
judgment in place of a sentencing court where a lower court was fully aware
of all mitigating factors. See Commonwealth v. Macias, 968 A. 2d 773,
778 (Pa. Super. 2009). However, this Court must consider the reasonableness
of a sentence by evaluating:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
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(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d). A sentence may therefore be vacated, and the case
remanded for resentencing, when “[t]he sentencing court sentenced outside
the guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c).
“[T]he General Assembly intended the concept of unreasonableness to be
inherently a circumstance-dependent concept that is flexible in understanding
and lacking precise definition.” Walls, 926 A.2d at 568.
Applying these statutory mandates, we are compelled to find that
Appellee’s downward departure sentence is unreasonable. The findings upon
which the sentence was based are not supported by the record, and the trial
court has not given sufficient consideration of the general sentencing
standards set forth in Section 9721.
Appellee’s offense gravity score was 14, a level commensurate with
serious crimes such as rape and third-degree murder. See generally 204
Pa.Code § 303.15. The standard guidelines range for Appellee was a prison
term of eight to 15 years, with mitigated and aggravated ranges of seven and
16 years, respectively. The trial court instead sentenced Appellee to a term
of house arrest (11.5 to 23 months), which was a dramatic departure from
even the mitigated range of seven years.
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The trial court reasoned that its departure was justified based on “the
nature of the offense, Appellee’s role in the offense; his acceptance of
responsibility; age and behavioral health issues; Appellee’s history and
character and likelihood to respond affirmatively to probation; and whether
imprisonment would entail excessive hardship.” Trial Court 1925(a) Opinion,
4/3/2025, at 17.
As to the nature of the offenses, the trial court indicated that “Appellee’s
[crimes] were all nonviolent and economically based, as the crimes were drug
related and did not involve the use of force or injury to another person.” Id.
The trial court also determined that Appellee was likely influenced by his older
co-conspirators, and that he was not directly linked to five of the eight
residences searched by police, suggesting that Appellee was more of a midlevel conspirator, and not the highest-ranking member of the drug distribution
network. Id., at 17-19.
As to Appellee’s age, the trial court cited recent changes to the federal
sentencing guidelines, which were amended to reflect the relatively diminished
culpability for defendants under the age of 25, prior to the stage of complete
brain development. See id., at 19-21. The trial court found that Appellee’s
prior traumatic experiences, remorse, and prospects for rehabilitation all
justified departure below the mitigated range of the sentencing guidelines.
See id., at 22-25.
The record does not support the trial court’s findings. To begin, it is a
gross misstatement to label Appellee’s offenses as merely “nonviolent and
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economic” in nature. Appellee aggressively distributed fentanyl on a mass
scale, promoting a business which preyed on those afflicted by addiction. Not
long before his arrest, Appellee even had planned to expand his territory by
bombarding his neighborhood with “samples” of his product, aptly called
“Death Row.”
The trial court is correct in stating that the crime of PWID (fentanyl) is
not an offense in which the perpetrator uses his own brute strength to harm
another person. Focusing only on the lack of direct force, however, obscures
the obvious fact that perpetrators of the offense exploit drug users’
vulnerability by supplying them with the means of harming or killing
themselves. Appellee’s actions no doubt led to the physical harm of countless
individuals in this manner, and he publicly took pride in it.
In Appellee’s recorded conversations about the enterprise, he himself
referred to the likelihood that his product would kill his customers, as well as
cause a “war” with local competitors. These comments cannot be dismissed
as hyperbole, not when overdose deaths in Philadelphia have risen
dramatically in recent years, and enough weapons were kept in Appellee’s
stash houses to wage a street war at a moment’s notice.
Framing Appellee’s crimes as merely “nonviolent and economic”
understates the threat of Appellee’s conduct to the community, conduct that
frequently leads to deaths. While Appellee’s offenses, in a traditional sense,
may not be akin to, say, pulling the trigger of a gun, his peddling of drugs,
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with full knowledge of their lethality, inflicts a degree of violence upon the
community as severe as that caused by gun violence.
As well, characterizing Appellee’s conduct as merely “economic” blindly
ignores the ends to which drug use often fuels additional criminal activity, as
addicts may have to resort to any number of illegal means to financially
support their addiction. Mitigation may be proper where the nature and
circumstances of the offenses are such that they neither cause nor threaten
serious harm, see 204 Pa. Code § 303a.6(f)(1)(i)(A), but Appellee’s offenses
most certainly did so. In light of the nature and circumstances of those
offenses, the gulf between the sentence Appellee received and the mitigated
range of the guidelines cannot be justified.4
Moving on, we next examine the trial court’s finding that Appellee’s
acceptance of responsibility justified the downward departure. Here again,
we cannot agree that the record supports this basis for mitigation. A
defendant’s guilty plea, waiver of credit for time served, and waiver of a
preliminary hearing, could indeed be construed in some situations as an
acceptance of responsibility for criminal offenses, warranting a downward
departure. However, Appellee made it clear in his allocution that he took
4 It is also specious for the trial court to suggest that Appellee was less culpable than his co-defendants because Appellee did not personally own or reside in some of the residences that police searched. See Trial Court 1925(a) Opinion, at 17-19. Appellee pleaded guilty to one count of conspiracy. The storehouses and stash houses utilized by co-conspirators were therefore directly attributable to Appellee for present purposes.
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those steps as a strategic decision to obtain for himself the best possible
outcome in this case.
Repeatedly, Appellee insisted that he was innocent, that police were
“targeting” him, and that he was in the wrong place at the wrong time. N.T.
Sentencing, 6/7/2024, at 19. He showed some remorse for the effect his
criminal case had on his family, but he did not at all acknowledge the harm
he caused to fentanyl users, their families, or the community at large. To the
contrary, Appellee argued that it was impossible for him to “force” anyone to
abuse drugs or commit other crimes. See id., at 19-22.
A guilty plea and waiver of rights do not automatically entitle a
defendant to a sentence far below the mitigated guidelines range. “[T]he
guidelines apply to all sentences alike, whether imposed following a plea or
trial.” Commonwealth v. Wilson, 946 A.2d 767, 775 (Pa. Super. 2008)
(emphasis in original). Mitigation, based on a supposed acceptance of
responsibility, cannot be justified where, as here, Appellee instead proclaimed
his innocence, going so far as to complain at the sentencing hearing that “the
whole case is crazy.” N.T. Sentencing, 6/7/2024, at 21; See Commonwealth
v. Daniel, 30 A.3d 494, 499 (Pa. Super. 2011) (defendant’s guilty plea did
not justify “the extreme leniency accorded him given the ferocity of his [crime]
and his prior criminal history”); Commonwealth v. Kenner, 724 A.2d 808,
812 (Pa. Super. 2001) (defendant’s age (23) and lack of a prior criminal record
did not justify extreme downward departure, in large part due to defendant’s
lack of remorse).
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At best, the record demonstrates that Appellee only superficially feigned
remorse for his actions and pleaded guilty to gain sentencing leniency.
Appellee’s allocution in fact revealed a mindset that was consistent with record
evidence of his pride in his business acumen, his gratitude to customers for
his financial success, and his eagerness to dispense ever-greater quantities of
lethal drugs in the community to prevail over rival drug dealers. Appellee’s
remorse also is belied by his complaints about the perceived unfairness of his
prosecution. In short, the trial court’s reliance on Appellee’s acceptance of
responsibility is not supported by the record.
The trial court’s findings with respect to rehabilitation are just as
unfounded. While it is commendable that Appellee had abstained from drug
use and received vocational training, he nevertheless has failed to avail
himself of non-incarcerative sanctions in the past. More to the point, Appellee
brazenly dispensed mass quantities of lethal substances while he was serving
probation, not in one, not in two, but in three cases in which he had been
convicted of PWID. Appellee performed well in some respects of probation in
the past, but that alone hardly bodes well for his prospects on immediate
release to house arrest. He utterly failed to perform the most important
probationary term – refraining from committing new crimes. Not even the
trial court had much confidence that Appellee was “ready” to move on from
drug trafficking. See Sentencing Hearing, 6/7/2024, at 28. The record makes
clear that placing Appellee on probation did absolutely nothing to curtail his
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criminal activity. If anything, Appellee increased his drug activity while
serving probation.
Finally, we consider the trial court’s finding that incarceration would
entail an excessive hardship for Appellee and his family, including his three
young children. This consideration could indeed justify some measure of
mitigation. Significantly, though, the trial court seemed to focus on the wellbeing of Appellee and his family without due regard for the great harm that
Appellee has caused the residents of Kensington, many of whom no doubt
have families of their own. At no point during the sentencing hearing, or its
1925(a) opinion, did the trial court recognize the dangers posed by Appellee’s
activities, or the how the public interest would be served by his confinement.
It is also apparent that Appellee himself did not prioritize his family’s welfare,
as his illicit activities were in no way compatible with responsible parenting.
A sentence must be imposed for the minimum amount of confinement
that is consistent with the protection of the public, the gravity of the offense
and the rehabilitative needs of the defendant. See Commonwealth v.
Martin, 351 A.2d 650, 658 (Pa. 1976). Fentanyl is lethal, and Appellee has
showed no contrition for profiting from its deadly effects. He already was
serving probation on multiple prior offenses at the time he was dealing
fentanyl on a mass scale. Nothing in the record would inspire confidence in
Appellee’s ability, or desire, to refrain from doing so again. Any potential
hardships that a period of incarceration might cause Appellee and his family
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would pale in comparison to the collective suffering brought about by
Appellee’s continued promotion of fentanyl use in the Kensington area.
In sum, the trial court recounted various reasons for its dramatic
downward departure from the mitigated range of the guidelines, but none of
those reasons are supported by the record. The trial court imposed an entirely
rehabilitative sentence that cannot be objectively justified. Appellee already
had been given several chances to reform, and he used those opportunities to
continue putting numerous lives at risk. The trial court failed to acknowledge
the gravity of Appellee’s offenses as it relates to the impact on the lives of his
victims and the Kensington community. Based on the facts of this case, a
sentence of immediate parole that is more than 6 years below the minimum
mitigated range of sentencing for Appellee’s crimes is unreasonable and an
abuse of sentencing discretion.
We stress in closing that, while the guidelines are advisory, a downward
departure must be supported by the record, and the general objectives of the
guidelines must be honored. The guidelines establish a “sentencing system
with a primary focus on retribution[.]” Commonwealth v. Lee, 357 A.3d
356, 394 (Pa. 2026) (quoting 204 Pa.Code § 303.11(a)). Downward
departures from the recommended ranges of the guidelines are permitted only
as long as they are reasonable, and derived from a full consideration of
mandatory sentencing factors. See Wilson, 946 A.2d at 775-76 (quoting
Walls, 926 A.2d at 963); see also 42 Pa.C.S.A. § 9721(b).
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The purposes of the sentencing guidelines cannot be fulfilled when the
court gives short shrift to key aspects of a defendant’s background, the gravity
of the offenses, and a lack of remorse, particularly in a case where the
defendant committed the offenses while serving multiple probationary terms.
Imposing purely rehabilitative measures here, in lieu of any retribution, is
unreasonably lenient under the present facts.
"When people begin to believe that organized society is unwilling or
unable to impose upon criminal offenders the punishment they 'deserve,' then
there are sown the seeds of anarchy – of self-help, vigilante justice and lynch
law.” Furman v. Georgia, 408 U.S. 238, 308 (1972) (Stewart, J.,
concurring). "The law threatens certain pains if you do certain things,
intending thereby to give you a new motive for not doing them. If you persist
in doing them, it has to inflict the pains in order that its threats may continue
to be believed." Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (citing
O. Holmes, The Common Law 40 (M. Howe ed. 1963)).
In order to ensure that the express retributive aims of the Sentencing
Code are applied, and that the mandatory factors are adequately considered,
we hold that the trial court abused its discretion by imposing an unreasonable
sentence well below the mitigated range. On remand, Appellee must be
resentenced in a manner that comports with the sentencing guidelines.
Judgement of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Date: 8/6/2026
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