Com V Davis A
J-S14012-25
2025 PA Super 156
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW DAVIS, III :
:
Appellant : No. 1025 EDA 2024
Appeal from the Judgment of Sentence Entered February 29, 2024
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002825-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW DAVIS, III :
:
Appellant : No. 1026 EDA 2024
Appeal from the Judgment of Sentence Entered February 29, 2024
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003720-2020
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
OPINION BY BECK, J.: FILED JULY 22, 2025
Andrew Davis, III (“Davis”) appeals from the judgment of sentence
entered by the Delaware County Court of Common Pleas (“sentencing court”)
following his open guilty plea at docket CP-23-CR-0002825-2020 (the “assault
docket”) to aggravated assault, simple assault, recklessly endangering
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* Former Justice specially assigned to the Superior Court.
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another person, burglary, criminal trespass, harassment, and at docket CP-
23-CR-0003720-2020 (the “threat docket”) to multiple counts of intimidating
a witness and one count of terroristic threats. 1 Davis purports to challenge
the legality of his sentence. Because we conclude, however, that Davis
actually presents a challenge to the discretionary aspects, and not the legality,
of his sentence and that he failed to properly raise and preserve this issue for
appellate review, we affirm.
On the night of June 16, 2020, Davis entered the home of his ex-
paramour, Latifah Bolds (“Bolds”), without her knowledge or consent and,
upon finding her in bed with another man, physically attacked her until she
lost consciousness. Bolds sustained a concussion, two broken bones in her
skull, a broken orbital bone, and a broken nose. Bolds’ injuries required
surgery, and she missed several months of work.
When police responded to the scene, they observed Bolds’ blood on the
walls and floor. They also observed a blue Buick driving back and forth in
front of Bolds’ home. After police stopped the vehicle, they noticed fresh
fingerprints on the trunk and asked its driver, Davis’ then-paramour Brittany
Washington (“Washington”), if they could search the trunk. Washington
consented to the search and police found Davis inside the trunk. Police
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1 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), (3), 2705, 3502(a)(1)(i),
3503(a)(1)(i), 2709(a)(1), 4952(a)(1), (2), 2706(a)(1).
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removed Davis from the vehicle and questioned him about Bolds’ assault.
Davis eventually admitted to police that he entered Bolds’ home and assaulted
her.
Police arrested Davis and charged him with the above-referenced crimes
at the assault docket. Following his arrest, Davis began leaving Bolds
voicemails in which he not only attempted to bribe her to prevent her from
testifying against him, but threatened to kill her if she testified against him.
Consequently, the Commonwealth charged Davis with the above-referenced
crimes at the threat docket.
On February 29, 2024, Davis entered an open guilty plea to all charges
at both dockets and the trial court proceeded immediately to a sentencing
hearing. During the sentencing hearing, the sentencing court made several
references to Davis’ past drug-dealing activities. See N.T., 2/29/2024, at 47,
51-52. The same day, the sentencing court sentenced Davis to an aggregate
term of five to ten years in prison at the assault docket consecutive to another
five to ten years in prison at the threat docket, for a total period of
incarceration of ten to twenty years. Davis filed a timely post-sentence motion
for reconsideration of sentence, which the sentencing court denied.
Davis filed timely notices of appeal to this Court. Both Davis and the
sentencing court have complied with Pennsylvania Rule of Appellate Procedure
1925. On August 13, this Court sua sponte consolidated Davis’ appeals from
the assault and threat dockets. He presents the following issue for review:
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“Did the sentencing court impose an illegal sentence when it based its
sentence in part on what it believed was [Davis’] on-going drug dealing
activity, even though there were no convictions to support that reasoning?”
Davis’ Brief at 2.
Davis argues that his sentence is illegal because the sentencing court
relied on impermissible factors in fashioning his sentence. Id. at 5-7.
Specifically, he asserts that the sentencing court based his sentence on the
improper inference that he was engaged in ongoing drug dealing activities
because he had previously been arrested for drug-related crimes, but the
court failed to reference any specific convictions that resulted from those
arrests during the sentencing hearing. See id. Davis maintains that “prior
arrests without an attendant conviction are impermissible sentencing
factors[.]” Id. at 6. He contends that the sentencing court therefore based
his sentence on its “supposition” that he is a drug dealer. Id.
In response, the Commonwealth argues that the claim Davis raises is
not that his sentence is illegal but rather a challenge to the discretionary
aspects of his sentence. Commonwealth’s Brief at 12. The Commonwealth
further asserts that Davis’ discretionary sentencing claim is not properly
before this Court because Davis did not include in his appellate brief a
statement pursuant to Pennsylvania Rule of Appellate Procedure 2119(f)
seeking permission to appeal the discretionary aspects of his sentence, and
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because he did not preserve the specific sentencing claim he raises in his Rule
1925(b) statement. Id.
“The determination as to whether a trial court imposed an illegal
sentence is a question of law[.]” Commonwealth v. Clary, 226 A.3d 571,
581 (Pa. Super. 2020) (citation omitted). For questions of law, “our standard
of review is de novo, and our scope of review is plenary.” Commonwealth
v. Stevenson, 318 A.3d 1264, 1270 (Pa. 2024).
In support of his claim, Davis relies on our Supreme Court’s recent
decision in Commonwealth v. Berry, 323 A.3d 641 (Pa. 2024). In that case,
Berry was convicted of several crimes related to the sexual abuse of two young
family members. Id. Although he had no prior convictions or juvenile
adjudications, and thus a prior record score of zero, the trial court imposed a
sentence that departed significantly upward from the standard guideline
sentencing range. In support, the trial court cited Berry’s arrest record, which
the court characterized as other previous contacts with the criminal justice
system, as a factor. Id.
Following its grant of discretionary review, the Supreme Court concluded
“the sentencing court committed an error of law when it relied upon prior
arrests as a sentencing factor[.]” Id. at 654. The Court stated that “[i]f a
sentencing court chooses to depart from the guidelines, it must provide its
reasons for doing so” and that “the sentencing court indicated that a reason
for the sentence—an upward departure from the guideline range—was Berry’s
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arrest record.” Id. at 654-55. The Court explained, however, that “evidence
of a defendant’s arrest record is inadmissible and irrelevant in nearly every
criminal law context[,]” including sentencing, as “a sizeable percentage of
arrests do not lead to convictions.” Id. at 648, 653 (citation omitted). The
Court also pointed out that the Sentencing Code does not require a court to
consider a defendant’s prior arrests in determining a sentence. Id. at 649.
The Supreme Court therefore held that a defendant’s arrest history, without
resultant convictions, is an impermissible factor for courts to consider at
sentencing, finding it “incompatible with settled law establishing that arrests,
without convictions, simply have no value as probative matter.” Id. at 655.
Davis suggests that Berry stands for the proposition that a claim that a
sentencing court improperly relied on a criminal defendant’s prior arrest
history in imposing a sentence is a claim implicating the legality of a sentence.
See Davis’ Brief at 5-6. Our Supreme Court in Berry, however, made no such
suggestion. To the contrary, the Berry Court made clear that Berry had
challenged “the discretionary aspects of [his] sentence.” Berry, 323 A.3d at
643. Additionally, Davis’ argument is contrary to decades of case law holding
that a claim a sentencing court relied on impermissible factors in imposing a
sentence presents a challenge to the discretionary aspects of a sentence.
See, e.g., id.; Commonwealth v. Succi, 173 A.3d 269, 285 (Pa. Super.
2017) (stating that an argument that a sentencing considered impermissible
factors in determining a sentence is one of the “very hallmarks of a claim that
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implicates the discretionary aspects of a sentence”); Commonwealth v.
Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (finding that a claim of a
sentencing court’s reliance upon impermissible factors in fashioning a
sentence implicates the discretionary aspects of sentencing);
Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003) (same).
Generally, a claim challenging a sentencing court’s legal authority to
impose a particular sentence, as opposed to its exercise of discretion, presents
a question regarding the legality of the sentence. Clary, 226 A.3d at 579-80.
Our Supreme Court has explained that illegal sentencing claims arise in “four
broad categories” of cases: (1) “a claim that a sentence was imposed pursuant
to a facially unconstitutional sentencing statute”; (2) “a sentence was imposed
without the fulfillment of statutory preconditions to the court’s sentencing
authority”; (3) “claims that allege a violation of a substantive restriction that
the Constitution places upon a court’s power to apply the statutory sentence
to the defendant”; and (4) “the statutory support for the underlying conviction
is void ab initio.” Commonwealth v. Prinkey, 277 A.3d 554, 562-63 (Pa.
2022). Davis’ challenge to the sentencing court’s consideration of his arrest
history when fashioning his sentence does not fall under any of these
categories.
Because Davis’ claim that the sentencing court relied on an
impermissible factor in determining his sentence challenges the sentencing
court’s exercise of discretion, and not its legal authority to impose a sentence,
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we conclude that he has raised a claim challenging the discretionary aspects
of his sentence.2 See Berry, 323 A.3d at 643; see also Clary, 226 A.3d at
579-80; Prinkey, 277 A.3d at 562-63. “The right to appellate review of the
discretionary aspects of a sentence is not absolute and must be considered a
petition for permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d
1247, 1265 (Pa. Super. 2014) (en banc). To invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence, an appellant must
satisfy a four-part test: (1) the appellant preserved the issue by raising it at
the time of sentencing or in a post-sentence motion; (2) the appellant filed a
timely notice of appeal; (3) the appellant set forth in his brief a concise
statement of reasons relied upon for the allowance of his appeal pursuant to
Pennsylvania Rule of Appellate Procedure 2119(f); and (4) the appellant raises
a substantial question for review.3 Commonwealth v. Banks, 198 A.3d 391,
401 (Pa. Super. 2018).
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2 We recognize that a panel of this Court ruled otherwise in a non-precedential
decision very shortly after Berry was decided. See Commonwealth v.
Woodson, 332 A.3d 1261, 2024 WL 5205605, *3 (Pa. Super. 2024) (non-
precedential decision). That decision, however, was made without the benefit
of briefing on this issue. See id. Further, while non-precedential decisions
may be cited for persuasive authority, they are not binding. See Pa.R.A.P.
126(b); Commonwealth v. Rowe, 293 A.3d 733, 743 n.6 (Pa. Super. 2023).
3 When a defendant enters an open guilty plea, he may challenge the
discretionary aspects of the sentence imposed. See Commonwealth v.
Brown, 240 A.3d 970, 972 (Pa. Super. 2020).
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Here, Davis failed to include a Rule 2119(f) statement in his appellate
brief and the Commonwealth has expressly objected to his failure to do so.
See Commonwealth’s Brief at 13. As such, we cannot review his discretionary
sentencing claim. See Commonwealth v. Devine, 326 A.3d 935, 939 (Pa.
Super. 2024) (concluding that if an appellant fails to include a Rule 2119(f)
statement in his appellate brief and the Commonwealth objects, the issue is
waived); see also Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa.
Super. 2020) (stating that the 2119(f) statement must “sufficiently articulate[
] the manner in which the sentence imposed violates a specific provision of
the Sentencing Code or the norms underlying the sentencing process” for this
Court to conduct its review).4 Because we cannot review Davis’ discretionary
aspects of sentencing claim, and he has raised no other issues for review, we
must affirm his judgment of sentence.
Judgment of sentence affirmed.
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4 Additionally, we note, as does the Commonwealth, that Davis failed to
include in his Rule 1925(b) statement his specific claim that the sentencing
court erred in considering his prior drug dealing activities in fashioning his
sentence. See Rule 1925(b) Statement, 5/1/2024, at 1-2. Davis’
discretionary sentencing claim is therefore waived on this basis as well. See
Pa.R.A.P. 1925(b)(3)(iv) (stating that “any issue not properly included in the
Statement … shall be deemed waived”).
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Date: 7/22/2025
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