discretionary sentencing claim in Pennsylvania

2022See Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal); see also Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (holding that issues challenging the discretionary aspects of a sentence must be raised at sentencing or in a post- sentence motion or they are waived).9 Thus, Street failed to preserve any ____________________________________________ 9 We recognize that this Court has considered a discretionary sentencing claim after determining that a juvenile homicide offender did not receive a de fac

2020See Cartrette, supra at 1042 (providing that to adequately preserve a discretionary sentencing claim, the defendant must present the issue in either a post-sentence motion, or raise the claim during the sentencing proceedings).

2023Preliminarily, we observe that Carter, like Attorney Fiorillo, fails to satisfy the jurisdictional requirements to address a discretionary sentencing claim.19 See Moury, supra; see Gibbs, supra. Additionally, Carter’s sub- claim that the trial court issued an incorrect jury instruction was not raised in the trial court and, thus, is waived.

2022See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). 10 We further observe that the only discretionary sentencing claim that Street raised in his Pa.R.A.P. 2119(f) statement was that “the trial court failed to undertake such an analysis and instead simply rubber-stamped the sentence requested by the prosecutor.” Street’s Brief at 28.

2024See id.

2023Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (explaining that where an appellant has failed to raise the discretionary sentencing claim in the lower court, it is waived).

2025See Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (noting where counsel has filed an Anders brief, this court has reviewed a discretionary sentencing claim, even absent a separate Rule 2119(f) ____________________________________________ 4 Batista’s statement is insufficient.

2024For purposes of our review, we accept that Appellant has met the first three requirements of the above test.7 Therefore, we must determine whether Appellant has raised a substantial question. ____________________________________________ 7 This Court has explained that in cases where counsel has filed an Anders/Santiago brief, we will review a discretionary sentencing claim “even absent a separate Pa.R.A.P. 2119(f) statement” and “do not consider counsel’s failure to submit a Rule 2119(f) statement as precluding review of whether [the a]ppellant’s issue is frivolous.” Commonwealth v. Zeigler, 1

2024See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (declining to find waiver of a discretionary sentencing claim “in light of [c]ounsel’s petition to withdraw,” even though the Anders brief contained a deficient Rule 2119(f) statement).

2020See Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (holding that, in order to rule upon Anders counsel’s petition to withdraw, we must examine the merits of the appellant’s discretionary sentencing claim, as raised in the Anders brief, despite Anders counsel’s failure to file a court-ordered Pa.R.A.P. 1925(b) concise statement); see also Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (addressing appellant’s discretionary sentencing claim despite Anders counsel’s failure to include a Pa.R.A.P. 2119(f) statement in his Anders brief).

2024See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“Absent [a challenge raised in a post-sentence motion or by presenting it to the trial court during the sentencing proceedings], an objection to a discretionary aspect of a sentence is waived.”); see also Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020) (explaining that precedent does not permit “this Court to address issues that were not properly preserved in the trial court” and “the mere filing of an Anders brief and petition to withdraw will not serve to resuscitate claims that were already waived upon

2023See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“Absent [a timely post-sentence motion or claim raised during sentencing], an objection to a discretionary aspect of a sentence is waived.” (citation omitted)); see also Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020) (explaining that precedent does not permit “this Court to address issues that were not properly preserved in the trial court” and “the mere filing of an Anders brief and petition to withdraw will not serve to resuscitate claims that were already waived upon the filing of the notice of appeal

2020See Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (holding that, in order to rule upon Anders counsel’s petition to withdraw, we must examine the merits of the appellant’s discretionary sentencing claim, as raised in the Anders brief, despite Anders counsel’s failure to file a court-ordered Pa.R.A.P. 1925(b) concise statement); see also Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (addressing appellant’s discretionary sentencing claim despite Anders counsel’s failure to include a Pa.R.A.P. 2119(f) statement in his Anders brief).

2020See Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (holding that, in order to rule upon Anders counsel’s petition to withdraw, we must examine the merits of the appellant’s discretionary sentencing claim, as raised in the Anders brief, despite Anders counsel’s failure to file a court-ordered Pa.R.A.P. 1925(b) concise statement); see also Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (addressing appellant’s discretionary sentencing claim despite Anders counsel’s failure to include a Pa.R.A.P. 2119(f) statement in his Anders brief).

2024See Commonwealth v. Dodge, 77 A.3d 1263, 1271-72 (Pa.Super. 2013) (concluding the appellant's claim that the imposition of consecutive sentences was disproportionate to his crimes, and that the court disregarded the nature and circumstances of his offense, presents a substantial question); Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005) (finding an excessive-sentence claim, in ____________________________________________ 8 Rivera has satisfied the other requirements for raising a discretionary sentencing claim.

2024See Commonwealth v. Dodge, 77 A.3d 1263 , 1271-72 (Pa.Super. 2013) (concluding the appellant's claim that the imposition of consecutive sentences was disproportionate to his crimes, and that the court disregarded the nature and circumstances of his offense, presents a substantial question); Commonwealth v. Perry, 883 A.2d 599 , 602 (Pa.Super. 2005) (finding an excessive-sentence claim, in ____________________________________________ 8 Rivera has satisfied the other requirements for raising a discretionary sentencing claim.

2024See Commonwealth v. Schutzues, 54 A.3d 86 (Pa. Super. 2012); Commonwealth v. Cappellini, 690 A.2d 1220, 1228 (Pa. Super. 1997) (despite 42 Pa.C.S.A. § 9721(b) providing, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed” the court concluded that a claim that the court did not provide its reasons for sentencing constituted a discretionary sentencing claim).

2019See Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. Super. 2013) (“A sentencing court’s failure to follow the pertinent aspects of § 9721(b) do not result in an illegal sentence, but pertain to discretionary sentencing matters.”) (citing Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010); Commonwealth v. Cappellini, 690 A.2d 1220, 1228 (Pa. Super. 1997) (claim that the court did not provide its reasons for sentencing constituted a discretionary sentencing claim)).

2026See Miller, 275 A.3d at 534 (stating that a discretionary sentencing claim may be preserved at the sentencing hearing); see also Commonwealth v. Perzel, 291 A.3d 38, 47 (Pa. Super. 2023) (stating that “[i]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings”) (emphasis supplied).

2025Moreover, although Appellant satisfied the prerequisites for review of her discretionary aspects of sentence claim, see Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022), appeal denied, 302 A.3d 626 (Pa. 2023) (outlining the four-part jurisdictional test necessary for substantive review of a discretionary sentencing claim)3, she has provided little beyond ____________________________________________ 2 Appellant’s post-sentence motion does recite some generally relevant law regarding a weight of the evidence claim, such as the oft-repeated phrase that the verdict must be so contrary t

2026See Miller, 275 A.3d at 534 (stating that a discretionary sentencing claim may be preserved at the sentencing hearing); see also Commonwealth v. Perzel, 291 A.3d 38, 47 (Pa. Super. 2023) (stating that “[i]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings”) (emphasis supplied).

2026Absent such efforts, an objection to a discretionary aspect of a sentence is waived.” Commonwealth v. Perzel, 291 A.3d 38, 47 (Pa. Super. 2023) (citation omitted); see Davis, 341 A.3d at 812-13 (describing the four-part test an appellant must satisfy to invoke this Court’s jurisdiction to review a discretionary sentencing claim).

2025See Malovich, 903 A.2d at 1251 ; Pa.R.A.P. 302(a); see also Commonwealth v. Cook, 175 A.3d 345, 349 (Pa. Super. 2017) (stating that where a discretionary sentencing claim is not preserved, it is waived and, therefore, frivolous on direct appeal, even in the Anders/Santiago context).

2019Issues 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) (concluding that a discretionary sentencing claim following the revocation of probation was waived because the appellant did not file a post-sentence motion or raise the issue before the court at the sentencing hearing); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).

2024However, this Court has explained that in cases where counsel has filed an Anders/Santiago brief, we will review a discretionary sentencing claim “even absent a separate Pa.R.A.P. 2119(f) statement” and “do not consider counsel's failure to submit a Rule 2119(f) statement as precluding review of whether [the a]ppellant's issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015); see also Commonwealth v. Bynum-Hamilton, 135 A.3d 179 (Pa. Super. 2016) (stating that the appellant's failure to file a separate Rule 2119 statement where counsel has sought to withdraw does not

2024For purposes of our review, we accept that Appellant has met the first three requirements of the above test.7 Therefore, we must determine whether Appellant has raised a substantial question. ____________________________________________ 7 This Court has explained that in cases where counsel has filed an Anders/Santiago brief, we will review a discretionary sentencing claim “even absent a separate Pa.R.A.P. 2119(f) statement” and “do not consider counsel’s failure to submit a Rule 2119(f) statement as precluding review of whether [the a]ppellant’s issue is frivolous.” Commonwealth v. Zeigler, 1

2024See Commonwealth v. Schutzues, 54 A.3d 86 (Pa. Super. 2012); Commonwealth v. Cappellini, 690 A.2d 1220, 1228 (Pa. Super. 1997) (despite 42 Pa.C.S.A. § 9721(b) providing, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed” the court concluded that a claim that the court did not provide its reasons for sentencing constituted a discretionary sentencing claim).

2015See Commonwealth v. Schutzues, 54 A.3d 86 (Pa. Super. 2012); Commonwealth v. Cappellini, 690 A.2d 1220, 1228 (Pa. Super. 1997) (despite 42 Pa.C.S. § 9721(b) providing, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed” the court concluded that a claim that the court did not provide its reasons for sentencing constituted a discretionary sentencing claim).

2017If the record is devoid of a defendant's request for allocatur, he may still have a cognizable PCRA claim if he proves any issues he sought to take to the Supreme Court "rose 'above frivolity."' Commonwealth v. Rigg, 84 A.3d 1080, 1088 (Pa. Super. 2014)(quoting Connnonwealth v. Bath, 907 A.2d 619, 624 (Pa. Super. 2006)); see also Gadsden, 832 A.2d at l 085-86 (citing Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003)). "(B]ecause the Pennsylvania Supreme Court is generally statutorily precluded from reviewing a defendant's discretionary sentencing claim," see 42 Pa. C.S.A. § 9781(£), the Superior

2016Commonwealth v. Rigg, 84 A.3d 1080 , 1086- 1090 (Pa.Super. 2014) (declining to extend the holding in Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003) (appellate counsel is per se ineffective for failing to file a requested petition for allowance of appeal), to cases where the sole issue counsel could pursue is a discretionary sentencing claim).

2024Pursuant to statute, a discretionary sentencing challenge does not entitle an appellant to “review as of right.” See 42 Pa.C.S.A. § 9781(b); Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en banc).

2023It is well established that a discretionary sentencing challenge does not entitle an appellant to “review as of right.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en banc) (citation omitted).

2020ANALYSIS Appellant, in his appeal, implicates the discretionary aspects of sentencing and there is no absolute right to direct appellate review of a discretionary sentencing claim. 42 Pa.C.S. § 2 9781(b); see also Commonwealth v. Greene, 702 A.2d 547, 551 (Pa.Super. 1997).

2015In Commonwealth v. Greene, 702 A.2d 547 (Pa.Super.1997), we explained an appellant’s burden when raising such a challenge, as follows: Unlike a challenge to the legality of a sentence,' there is no absolute right to direct appellate review of a discretionary sentencing claim.

2026See Commonwealth v. Edwards, 194 A.3d 625, 636 (Pa.Super. 2018); Pa.R.A.P. 2119(f) (“An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence”). - 13 - J-A28026-25 Here, Madera’s appeal is timely, but he has failed to preserve his sentencing claim before the trial court.

2021When evaluating the merits of a discretionary sentencing claim, “appellate courts afford the sentencing court great deference, as it is the sentencing court that is in the best position to view the defendant’s character, displays of remorse, defiance, or indifference, and the overall effect and nature of the crime.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super. 2018) (internal quotation marks omitted).

2026See Kalichak, 943 A.2d at 291 .

2021See Commonwelth v. Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (en banc); Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008); see also Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020) (stating that the Hernandez and Lilley decisions do not permit “this Court to address issues that were not properly preserved in the trial court” and “the mere filing of an Anders brief and petition to withdraw will not serve to resuscitate claims that were already waived upon the filing of the notice of appeal”).

2025See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (holding that the failure to raise a discretionary sentencing claim at sentencing or in a post-sentence motion results in waiver).

2019See Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary aspects of sentencing are generally waived if they are not raised during sentencing proceedings or in post-sentence motion); accord Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012).

2024See also Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (holding that if the appellant fails to comply with Pa.R.A.P 2119(f), the Superior Court may entertain a discretionary sentencing claim if the Commonwealth does not object to the appellant’s failure to comply with Pa.R.A.P. 2119(f)).

2019See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (holding that, if the Commonwealth does not object to the appellant’s failure to comply with Pa.R.A.P. 2119(f), the Superior Court may entertain the discretionary sentencing claim).

2015As such, the Anders brief sets forth a discretionary sentencing claim. “[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence.” Commonwealth v. Crump, 2010 PA Super 101 , 995 A.2d 1280, 1282 (Pa.Super. 2010); 42 Pa.C.S. § 9781(b).

2015As such, the Anders brief sets forth a discretionary sentencing claim. “[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence.” Commonwealth v. Crump, 2010 PA Super 101 , 995 A.2d 1280, 1282 (Pa.Super. 2010); 42 Pa.C.S. § 9781(b).

2026Id. (citing Pa.R.A.P. 302).

2026Id. (citations omitted).

2026Commonwealth v. Colon, 102 A.3d 1033 , 1042–43 (Pa. Super. 2014) (quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).

2019Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa.Super. 2013).