Com. v. Amara, A. ( 2019 )

J-S04013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADRIAN K. AMARA :
:
Appellant : No. 1730 MDA 2017
Appeal from the Judgment of Sentence June 21, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006270-2015
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2019
Appellant, Adrian K. Amara, appeals from the judgment of sentence
entered on June 21, 2017, in the York County Court of Common Pleas. We
affirm.
The trial court provided a thorough recitation of the factual history of
this matter:
This case has a tortured history. [Appellant] was first
brought to trial on January 11, 2017. After the lunch break on the
first day of trial, [Appellant] appeared for the afternoon session
impaired and unable to remain conscious. This was corroborated
by a positive drug test for opioid use. (Excerpt of Proceedings,
1/11/17 at 5). In short, [Appellant] went out and got high over
lunch during his own trial for dealing heroin. As a result of
[Appellant’s] inability to aid in his defense due to his intoxication,
a mistrial was declared. (E.P. at 7). [Appellant] was then brought
to trial the following week on January 17, 2017. During the
testimony of the police officers, at least 3 references were made
to [Appellant’s] “refusal to cooperate,” in violation of his right to
remain silent, which triggered another mistrial. (Notes of
Testimony, 1/17/17 - 1/18/17 at 183).
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* Former Justice specially assigned to the Superior Court.
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[Appellant] was brought to trial a third and final time on May
10, 2017. The Commonwealth first called Sergeant Adam
Bruckhart to testify. (Notes of Testimony, 5/10/17 - 5/12/17 at
103). In June and July of 2015, Sergeant Bruckhart was
coordinating a drug investigation with a confidential informant
pertaining to a suspected drug dealer, Alana Clark, who lived at
30 North Broad Street in York, Pennsylvania. (N.T. at 106).
Sergeant Bruckhart had the confidential informant conduct 3
controlled drug buys of heroin from Ms. Clark. (N.T. at 107-116).
Each time, the confidential informant was searched before the
transaction, was given an amount of official funds, and returned
from the transaction with a quantity of heroin. (Id). These buys
occurred on June 30th, July 7th, and July 14th of 2015. (Id). During
the phone call to set up the buy on July 7th, Sergeant Bruckhart
overheard the confidential informant speaking to a male voice on
the other end of the call. (N.T. at 112). As a result of these
controlled buys, Sergeant Bruckhart obtained a search warrant for
the residence at 30 North Broad Street, and executed this warrant
on July 15, 2015. (N.T. at 117).
A team of officers entered 30 North Broad Street pursuant
to the warrant. They gathered all the residents in the kitchen.
(N.T. at 117). Ms. Clark and [Appellant] were discovered together
in a bedroom on the second floor. (N.T. at 118). In that bedroom,
the officers found sandwich bags, magazine clippings, and
packages of heroin. (N.T. at 124). The envelopes for the heroin
were fashioned out of magazine clippings folded around a quantity
of heroin. (N.T. at 124-125). Sergeant Bruckhart testified that this
method of packaging was extremely rare. (N.T. at 126).
The police also discovered identification evidence for the
occupants of the bedroom, including an [A]ccess card with Ms.
Clark’ s name on it, and a voter registration card and paystub with
[Appellant’s] name on it. (N.T. at 127). The paystub was from
August of 2013, almost two years prior to the search, suggesting
[Appellant] had resided there for sometime [sic]. (N.T. at 128).
Also located was $305 in cash, and three cellphones, two of which
were submitted for analysis. (N.T. at 130, 134). None of the cash
found matched the official funds used in the three controlled drug
buys by the confidential informant. (N.T. at 144). Also located in
the home were [Appellant’s] children. (N.T. at 117).
The Commonwealth then presented testimony from
Sergeant Travis Shearer. (N.T. at 151). Sergeant Shearer
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participated in the execution of the search warrant at 30 North
Broad Street, in which he interviewed [Appellant]. (N.T. at 152).
During this interview [Appellant] stated that he was a drug user,
that there were drugs in the upstairs bedroom of the residence
where he had been located, and that those drugs were his. Id.
Sergeant Shearer also recalled [Appellant] telling him that often
times those with drug habits have to sell drugs to fund their
addiction. (N.T. at 153).
The Commonwealth next presented the testimony of
Trooper Shawn Wolfe. (N.T. at 161). Trooper Wolfe assisted in the
controlled drug buys on July 7th and 15th by providing surveillance
and taking photographs. (N.T. at 162-165). Trooper Wolfe also
assisted in the execution of the search warrant on July 15th, in
which he was the first to enter the bedroom and observe
[Appellant] standing near the door, and Ms. Clark by the
windowsill. (N.T. at 166). Trooper Wolfe then went outside to see
what, if anything was thrown out of the window. (N.T. at 166). He
observed on the ground directly below the window a clear plastic
sandwich bag with drug residue in it and apparent packaging
material. (N.T. at 167). When re-entering the house, Trooper
Wolfe heard [Appellant] exclaim, “well you found it, that’s it.”
(N.T. at 168).
The Commonwealth then called Jessie Coy, a qualified
expert in cell phone data analysis. (N.T. at 178). [Appellant]
objected to the admission of the evidence of text messages from
the cell phones recovered at 30 N Broad Street. (N.T. at 180). One
of the phones, an AT&T phone, belonged to Alana Clark, as she
identified it as her own. (N.T. at 183). The second phone was a
Samsung phone for which the police were unable to determine
ownership, or the phone number. (N.T. at 184). Commonwealth’s
Exhibit 11 contained four screen shots of text messages from
Alana Clark’ s phone in the time frame shortly before the search.
The Court allowed three of four screen shots to be presented,
while the Court sustained [Appellant’s] objection to the fourth
screen shot. (N.T. at 193-204). [Appellant] did not object to the
admission of the first two screen shots, in fact expressly noting
there was no basis to object. (N.T. at 193-194). As detailed further
in this opinion, the Court allowed the third screen shot to be
admitted as it was an exception to the rule against hearsay as a
present sense impression under Rule 803(3). (N.T. at 199-200).
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Commonwealth’s Exhibit 12 was a subset of text messages
from Commonwealth’s Exhibit 13, which were text messages from
the unidentified Samsung phone. (N.T. at 205). The Court allowed
these exhibits to be presented at trial, but did not permit them to
go back to the jury during deliberations, so as to not
overemphasize their significance or confuse the jury. (N.T. at
213). Commonwealth Exhibit 13 contained additional texts that
were not relevant to the trial, nor were they referenced.
Mr. Coy then testified as to the contents of the text
messages recovered from the cell phones. (N.T. at 222). The
messages in Commonwealth’s Exhibit 11, screenshots from Alana
Clark’ s phone, were conversations about setting up transactions
for drugs. (N.T. at 225) The first two being messages between the
confidential informant and someone using Alana Clark’s phone,
the third screenshot between someone identified as “Canday” and
whoever was using Ms. Clark’s phone. (N.T. at 225).
Commonwealth’ s Exhibit 12 contained similar messages from the
unknown phone recovered in the bedroom, containing messages
about setting up transactions for drugs. (N.T. at 227). Finally, Mr.
Coy testified about Commonwealth’s Exhibit 13, which were the
messages recovered from the unidentified Samsung phone, in
which unknown individuals sent text messages to the phone,
referring to the addressee as a male, using terms like “bro.” ( N.T.
at 229).
The Commonwealth next called Detective Craig
Fenstermacher, who was qualified as an expert in the packaging
and sales of narcotics in York County, Pennsylvania. (N.T. at 250).
Detective Fenstermacher testified that users of illegal drugs will
commonly sell drugs to fund their habit, and that the method of
packaging heroin in this case, which was wrapped in magazine
paper, was unusual. (N.T. at 247). The evidence at trial showed
that there were more magazines in the room where [Appellant]
was discovered, in a state of being cut up to be used as additional
packaging material. (N.T. at 131). When presented with a
hypothetical situation matching the case at hand, Detective
Fenstermacher stated in his opinion, based on his training and
experience, that subjects packaging heroin in this manner would
have possessed the heroin with the intent to distribute. (N.T. at
257).
The Commonwealth then rested, at which point [Appellant]
elected to take the stand and testify on his own behalf. (N.T. at
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268). [Appellant] testified that the drugs found in the residence
were not his, but belonged to Ms. Alana Clark, who was the mother
of his child. (N.T. at 273). [Appellant] denied that he ever told the
police that the drugs were his or that he sold drugs. He sought to
explain away his statement that drug users sell drugs to fund their
habit as being in reference to Ms. Clark. (N.T. at 276). He
acknowledged that he made the statement “oh there it is” when
Trooper Wolfe came back inside with the drugs found below the
window, but stated that this was in reference to the police telling
him that they would rip the house apart until they found
something. (N.T. at 278). He stated he had no knowledge that Ms.
Clark was selling drugs1, and only allowed her to stay at the house
out of compassion as she was his child’s mother. (N.T. at 279).
[Appellant’s] child lived in the residence where the drug vending
operation was occurring. (N.T. at 276). Upon cross examination,
[Appellant] stated that he was not using heroin at that time, or at
any time2. (N.T. at 286).
1Despite being discovered in a small bedroom with
her, with heroin and packaging materials in plain view.
2 This untruthful testimony flew in the face of the fact
that [Appellant] abused opioids and triggered a
mistrial in his first trial.
After [Appellant’s] untruthful testimony regarding no
previous opioid use, [Appellant] presented a stipulation that both
parties had agreed to, that on January 11, 2017, [Appellant]
tested positive for unauthorized controlled substances, including,
but not limited to, marijuana. (N.T. at 305). [Appellant] then
rested. Id. This stipulation was entered in order to address the
fact [Appellant] had just lied under oath about prior drug use at
his first trial/mistrial where he used opioids over the lunch break,
and was carefully crafted in a manner to not prejudice the instant
trial by omitting reference to opioids.
The Commonwealth then presented the testimony of Karen
Sipe, the confidential informant, on rebuttal. (N.T. at 306). Ms.
Sipe testified that prior to July 15, 2015, she had purchased heroin
from [Appellant], and that during the time period around July 15,
2015, she worked with Detective Bruckhart to set up heroin buys
with [Appellant]. (N.T. at 308). At this point, the Commonwealth
closed its case, and then both parties presented closing
arguments. The jury then retired to deliberate, and returned with
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a verdict of guilty for Possession with the Intent to Distribute,
Criminal Conspiracy to Possession with the Intent to Distribute,
and Possession of Drug Paraphernalia. (Notes of Testimony,
5/15/17 at 17).
Trial Court Opinion, 9/17/18, at 2-8. On June 21, 2017, the trial court
sentenced Appellant to a term of six to twelve years of incarceration for
possession of a controlled substance with intent to deliver (“PWID”),1 a
consecutive term of five to ten years of incarceration for conspiracy to commit
PWID,2 and a concurrent term of three to six months for possession of drug
paraphernalia.3 This resulted in an aggregate sentence of eleven to twenty-
two years of incarceration, in addition to costs and fines. N.T., 6/21/17, at
20. Appellant filed a timely notice of appeal, and both the trial court and
Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues:
[1.] The trial court erred in admitting Commonwealth exhibits
consisting of text messages because there was no foundation that
Appellant was associated with the cell phone number, no
foundation who was communicating in the text messages, and the
text messages were hearsay for which no exception applied under
the circumstances.
[2.] The trial court abused its discretion in sentencing Appellant
because it had pre-judged Appellant’s sentence prior to trial by
rejecting a plea agreement and demonstrating if Appellant was
convicted at trial, the court would sentence him to an aggravated
range sentence. The trial court further abused its discretion by
____________________________________________
1 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S. § 903(a)(1).
3 35 P.S. § 780-113(a)(32).
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basing Appellant’s aggravated sentence on (1) a prior conviction
for PWID already included in his prior record score, (2) on
Appellant obtaining an additional charge of simple assault while
pending trial, (3) by failing to consider Appellant’s drug addiction
and need for rehabilitation, (4) and basing Appellant’s sentence
on the general issues surrounding the country’s “opioid epidemic.”
Appellant’s Brief at 5.
In his first issue, Appellant avers that the trial court abused its discretion
in admitting the Commonwealth’s Exhibits 11, 12, and 13, consisting of
screenshots of text messages and transcripts of text messages. Appellant
alleges that these exhibits were inadmissible as they were not properly
authenticated and amounted to hearsay. Appellant’s Brief at 18.4
It is well settled that the admissibility of evidence is solely within the
discretion of the trial court. Commonwealth v. Woeber, 174 A.3d 1096,
1100 (Pa. Super. 2017). This Court will reverse a trial court’s evidentiary
ruling only where there is a clear abuse of discretion. Id. Moreover, the
admissibility of electronic communications is to be evaluated on a case-by-
case basis as any other document to determine whether or not there has been
an adequate foundational showing of their relevance and authenticity. In the
Interest of F.P., 878 A.2d 91, 96 (Pa. Super. 2005).
Appellant argues that the Commonwealth failed to establish that
Appellant owned or possessed the cellular phone used to send the messages.
____________________________________________
4 We note the Commonwealth’s candor as it concedes that the trial court
abused its discretion in admitting Exhibits 11, 12, and 13 into evidence.
Commonwealth’s Brief at 13.
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Appellant’s Brief at 22-23. Therefore, there was a lack of authentication. Id.
at 22-24.
The Commonwealth’s Exhibit 11 consists of screenshots of three text
messages. The first two messages are not at issue. N.T., 5/10-12/17, at 193.
However, Appellant objected to, and now challenges on appeal, the
admissibility of the third screenshot on Exhibit 11. Id. at 194. The screenshot
of the text reads, verbatim, as follows:
Hey girl Is A not around? I asked him to front me till tomorrow
but he didn’t respond. I know ho you usually don’t do that but I
figured since I got paid tomorrow and come thru every Thursday
then he would. I’m going thru it today I missed tha clinic so I’m
sick as fuck
Commonwealth’s Exhibit 11.
At trial, Appellant objected that the text was not a complete
conversation, there was a lack of foundation, there was no indication that
Appellant was part of this conversation, and the whole of the text is hearsay.
N.T., 5/10-12/17, at 194-197.5 The trial court overruled Appellant’s objection.
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5 We cannot agree with the Commonwealth’s assertion that Appellant objected
only on the basis of hearsay to Exhibit 11. Commonwealth’s Brief at 14. The
notes of testimony reflect that Appellant’s counsel argued a number of bases
for objecting to Exhibit 11. N.T., 5/10-12/17, at 194-197. Appellant’s counsel
objected based on relevance and a lack of foundation as to the participants in
the text conversation and its date, which we deem an objection based on lack
of authentication. See Pa.R.E. 901(a) (“To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.”).
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Id. at 200. Additionally, Exhibits 12 and 13 were merely transcripts of text
messages that appeared on a cellular telephone. Appellant reiterated his
objection to Exhibits 12 and 13. Id. at 206. Appellant argued that there was
no foundation that the cellular telephone belonged to Appellant, but the trial
court concluded that the Commonwealth does not have to “prove a phone
number.” Id. at 211. The trial court admonished Appellant’s counsel and the
Commonwealth that the ruling on Exhibits 12 and 13 was a “double-edged
sword” as it was not known if Appellant ever touched the telephone at issue.
Id. at 211-213. Despite the equivocation, the trial court admitted Exhibits
11, 12, and 13 into evidence. After review, we conclude that the trial court
abused its discretion.
In Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), this Court
discussed the requirements regarding the admissibility of text messages:
[E]-mails and text messages are documents and subject to the
same requirements for authenticity as non-electronic documents
generally. A document may be authenticated by direct proof, such
as the testimony of a witness who saw the author sign the
document, acknowledgment of execution by the signer, admission
of authenticity by an adverse party, or proof that the document or
its signature is in the purported author’s handwriting. See
McCormick on Evidence, §§ 219–221 (E. Cleary 2d Ed. 1972). A
document also may be authenticated by circumstantial evidence,
a practice which is “uniformly recognized as permissible.”
Commonwealth v. Brooks, 352 Pa.Super. 394, 508 A.2d 316(1986), (citing, e.g., Commonwealth v. Nolly, 290 Pa. 271, 138
A. 836 (1927) (letters authenticated by contents: facts known
only to sender and recipient); Commonwealth v. Bassi, 284 Pa.
81, 130 A. 311 (1925) (unsigned letter authenticated by
defendant’s nickname written on it, along with contents indicating
knowledge of matters familiar to both defendant-sender and
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witness-recipient); and McFarland v. McFarland, 176 Pa.Super.
342, 107 A.2d 615, 616 (1954)).
As these cases illustrate, the difficulty that frequently arises
in e-mail and text message cases is establishing authorship. Often
more than one person uses an e-mail address and accounts can
be accessed without permission. In the majority of courts to have
considered the question, the mere fact that an e-mail bears a
particular e-mail address is inadequate to authenticate the
identity of the author; typically, courts demand additional
evidence.
Text messages are somewhat different in that they are
intrinsic to the cell phones in which they are stored. While e-mails
and instant messages can be sent and received from any
computer or smart phone, text messages are sent from the
cellular phone bearing the telephone number identified in the text
message and received on a phone associated with the number to
which they are transmitted. The identifying information is
contained in the text message on the cellular telephone. However,
as with e-mail accounts, cellular telephones are not always
exclusively used by the person to whom the phone number is
assigned.
***
Authentication is a prerequisite to admissibility. … We held in In
the Interest of F.P., [878 A.2d 91 (Pa. Super. 2005),] and courts
of other jurisdictions concur, that authentication of electronic
communications, like documents, requires more than mere
confirmation that the [telephone] number or address belonged to
a particular person. Circumstantial evidence, which tends to
corroborate the identity of the sender, is required.
Glaringly absent in this case is any evidence tending to
substantiate that Appellant wrote the drug-related text messages.
No testimony was presented from persons who sent or received
the text messages. There are no contextual clues in the drug-
related text messages themselves tending to reveal the identity
of the sender. In addition to evidence that Appellant identified the
phone as hers, the trial court relied upon the fact that the cellular
phone was found on the table in close proximity to Appellant. Trial
Court Opinion, 11/30/10, at 13. However, we find Appellant’s
physical proximity to the telephone to be of no probative value in
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determining whether she authored text messages days and weeks
before. On these facts, the admission of the text messages
constituted an abuse of discretion.
Koch, 39 A.3d at 1004-1005.6
After review, we conclude there was no authentication of the messages,
no evidence that Appellant had any involvement with the telephones in
question, and no evidence of Appellant’s involvement in the conversations.
However, we conclude that any error was harmless.
The harmless error doctrine provides as follows:
Harmless error exists if the state proves either: (1) the error did
not prejudice the defendant or the prejudice was de minimis; or
2) the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the
erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Callen, 198 A.3d 1149, 1163 (Pa. Super. 2018) (citation
omitted).
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6 We note that the trial court admitted Exhibit 11 under the “then-existing
mental, emotional, or physical condition” exception to hearsay in Pa.R.E.
803(3). N.T., 5/10-12/17, at 200. However, as quoted above, “Authentication
is a prerequisite to admissibility[.]” Koch, 39 A.3d at 1005. Appellant
objected on multiple grounds, including improper authentication to the
admissibility of this Exhibit. N.T., 5/10-12/17, at 194-197. We conclude that
we need not address hearsay because Exhibit 11 was never properly
authenticated, and it never identified Appellant as a party to or a subject of
the conversation, let alone as the owner of the cellular telephone. Moreover,
there was confusion over the date that this text message was created. N.T.,
5/10-12/17, at 193-195.
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In support of its harmless-error argument, the Commonwealth avers
that the evidence against Appellant was overwhelming. Commonwealth’s
Brief at 16. We agree.
The record reflects that Detective Sergeant Adam Bruckhart’s
confidential informant (“the CI”) testified that she knew Appellant and
purchased heroin from him on a number of occasions. N.T., 5/10-12/17, at
306-307. The CI said that she would call Appellant on the telephone and
arrange to purchase heroin. Id. at 307. On July 14, 2015, the CI called
Appellant, and the two arranged a location for the purchase of heroin. Id. at
308. The CI stated that Appellant informed her that he would send Ms. Clark
to deliver the narcotics, and the CI received the heroin directly from Ms. Clark.
Id. at 309. The heroin was uniquely packaged in a folded magazine clipping.
Id. at 109.
Detective Bruckhart testified that he obtained a search warrant for the
house in which Ms. Clark was suspected to reside at 30 North Broad Street.
N.T., 5/10-12/17, at 117. When police executed the search warrant, they
discovered Appellant and Ms. Clark together in a bedroom. Id. The couple’s
minor children, along with other family members, were also present in the
house. Id. In the bedroom where Appellant was discovered, police found
heroin, plastic sandwich bags, and magazine clippings fashioned into
envelopes. Id. at 123-124. Inside these magazine-clipping envelopes were
packages of heroin. Id. at 124. Detective Bruckhart testified that this sort of
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packaging was rare. Id. Police also discovered digital scales and three cellular
telephones. Id. at 126. Detective Bruckhart testified that there was evidence
that Appellant and Ms. Clark lived in the residence. Id. at 127. This evidence
consisted of Ms. Clark’s Access card and mail addressed to Ms. Clark at the
residence. Id. Additionally, police found a voter identification card and a two-
year-old pay stub belonging to Appellant. Id.
During the search, Pennsylvania State Police Trooper Shawn Wolfe
witnessed Ms. Clark near the window and found heroin on the windowsill.
N.T., 5/10-12/17, at 167. Trooper Wolfe went outside to see if Ms. Clark had
dropped any evidence out of the window. Id. at 167. Directly beneath the
window, Trooper Wolfe found a plastic sandwich bag with suspected drug
residue in it and an envelope crafted from a magazine clipping used as
packaging material. Id. Trooper Wolfe returned to the interior of the house,
and he testified that when Appellant saw him with the package found outside
the window, he said, “[W]ell, you found it; that’s it.” Id. at 168.
After review, we conclude that this evidence overwhelmingly proved
Appellant’s involvement in a heroin-distribution enterprise with Ms. Clark, and
any prejudice from the text messages was insignificant. Callen, 198 A.3d at
1163. The evidence established that Appellant and Ms. Clark conspired to
illegally possess and distribute heroin and possess drug paraphernalia in
violation of 18 Pa.C.S. § 903(a)(1), and 35 P.S. § 780-113(a)(30) and (32).
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As such, any error in admitting the text messages into evidence was harmless.
Callen, 198 A.3d at 1163. Accordingly, Appellant is entitled to no relief.
In his second issue, Appellant claims that the trial court abused its
discretion in imposing sentence. Specifically, Appellant asserts the trial court
impermissibly sentenced him outside of the Sentencing Guidelines, ordered
the sentences to run consecutively, and relied on impermissible factors
including the opioid epidemic and a prior conviction that was already factored
into his prior record score. Appellant’s Brief at 6-7. In his brief, Appellant
correctly notes that this issue presents challenges to the discretionary aspects
of his sentence. Appellant’s Brief at 6-7, 27. It is well settled that when an
appellant challenges the discretionary aspects of his sentence, there is no
automatic appeal; rather, the appeal will be considered a petition for
allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). Furthermore, as this Court noted in Commonwealth v.
Moury, 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-
part test:
[W]e conduct a four-part analysis to determine: (1)
whether [the] appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. §9781(b).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Appellant has satisfied the first three elements of the four-part test from
Moury. Appellant preserved issues concerning the discretionary aspects of
his sentence by filing a timely post-sentence motion and notice of appeal, and
he provided a statement of reasons for allowance of appeal from the
discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f) in his brief.
Next, we must determine if Appellant has raised a substantial question for our
review. Moury, 992 A.2d at 170.
A substantial question requires a demonstration that “the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
2005). This Court’s inquiry “must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the
merits.” Id. Whether a substantial question has been raised is
determined on a case-by-case basis; the fact that a sentence is
within the statutory limits does not mean a substantial question
cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
(Pa. Super. 2003). However, a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of the underlying claim. Id.Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).
In his Pa.R.A.P. 2119(f) statement, Appellant raises multiple sentencing
issues. Appellant’s Brief at 6-7. However, in the argument portion of his brief
he abandons some of the claims raised in his Rule 2119(f) statement and
presents a conglomeration of the remaining claims. From Appellant’s
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argument, we discern two distinct issues: the trial court abused its discretion
by relying on the opioid epidemic, which Appellant argues was an
impermissible factor; and the trial court abused its discretion in imposing an
excessive sentence by sentencing Appellant outside of the Sentencing
Guidelines and ordering the sentences to run consecutively. Id. at 27-35.
First, Appellant avers that the trial court relied on an impermissible
factor, the opioid epidemic, in fashioning its sentence. Appellant’s Brief at 27.
We conclude that Appellant has presented a substantial question for our
review. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super.
2006) (holding that a claim that a sentence is excessive because the trial court
relied on impermissible factors raises a substantial question).
“[S]entencing 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 discretion.” Commonwealth v. Sheller, 961 A.2d 187,
190 (Pa. Super. 2008). Additionally, an abuse of discretion is not merely an
error in judgment; rather, an appellant must establish that the trial court
ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias, or ill will, or reached a manifestly unreasonable decision. Id.Appellant avers that the trial court relied on the fact that Appellant sold
heroin and that there were a substantial number of opioid-related deaths in
York County. Appellant’s Brief at 27-28. Appellant points out that the trial
court stated that there had been over 4,000 deaths in York County related to
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heroin overdoses in 2015. Id. at 28-29. Appellant disputes this number, and
he alleges that there were in fact ninety-five heroin-related deaths in 2015.
Id. at 30.
We conclude that this issue is waived. “Objections to the discretionary
aspects of a sentence are generally waived if they are not raised at the
sentencing hearing or in a motion to modify the sentence imposed.” Moury,
992 A.2d at 170. Although Appellant filed a timely post-sentence motion, he
never objected at the time of sentencing or in his post-sentence motion to the
trial court’s reference to the opioid epidemic or the number of deaths
attributable to heroin in York County.
Assuming, arguendo, that Appellant had preserved this issue, we would
conclude that no relief is due. Although the trial court did state that there had
been over 4,000 heroin deaths in 2015, N.T., 6/21/17, at 20-21, a number
that was unsubstantiated, we conclude that the trial court’s statement is of no
moment. Read in context, the trial court noted only that there was an
epidemic of heroin-related deaths, but the trial court stated “the Court does
not hold [Appellant] in any way responsible for any heroin deaths.” Id. at 20.
In its opinion, the trial court addressed this issue as follows:
With respect to [Appellant’s] argument that the Court based
his sentence on the general issues surrounding the nation’s opioid
epidemic, that factor was indeed one of several factors the court
took into consideration for aggravation. The Court should take into
account the overall effect and nature of the crime committed on
victims and society. The Court referenced the grave impact the
heroin epidemic has had on society at large and in the community
of York County. The Court referenced the growing number of
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heroin and opioid related deaths in the community, and how those
numbers continue to rise. The Court took these factors into
account, as should the impact of any crime on victims and society.
The Court did not hold [Appellant] responsible for anything more
than his pro rata contribution to a drug economy having serious
impact on the community. Nor did the Court hold [Appellant]
responsible for acts he did not commit. But, the Court did
recognize how [Appellant’s] actions and conspiracy increase the
danger to society. The defense argument seeks for the judge to
be deaf to the adverse impact of a [d]efendant’s illicit conduct on
the community. [Appellant] willingly engaged in the commerce of
selling heroin, an illegal substance widely known to be causing
widespread opioid overdoses and deaths. [Appellant’s] argument
seeks the court to sentence in a vacuum, without consideration of
a [d]efendant’s adverse contribution to a growing public health
threat. The contribution of [Appellant] to the heroin economy in
his second PWID conviction, and the negative impact of that illicit
economy to the community, are relevant considerations for
sentencing. In this case there was evidence of multiple sales
presented, and preparation for more sales underway. The
cumulative adverse impact of [Appellant’s] conspiracy is a
relevant sentencing factor.
Trial Court Opinion, 9/17/18, at 17-18.
Moreover, the trial court thoroughly explained the rationale for the
sentences it imposed. N.T., 6/21/17, at 13-19. The trial court stated that it
had reviewed a pre-sentence investigation (“PSI”) report.7 Id. at 13. While
the charges in the instant case were pending, Appellant was charged with
assault. Id. at 14. Appellant’s drug use and repeat offenses illustrate a “lack
of rehabilitative potential[.]” Id. at 16. The trial court noted that Appellant
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7 See Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016)
(“[W]here the sentencing judge had the benefit of a [PSI] 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.”).
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lied under oath during trial, which was indicative of his “poor decision-making
skills[.]” Id. at 17. Importantly, the trial court pointed out that Appellant’s
heroin-distribution enterprise was conducted out of his house, where children
resided, and it posed an obvious danger to those children. Id. at 18.
Accordingly, if Appellant had preserved this issue, we would not conclude that
the trial court’s passing reference to an unsubstantiated number of heroin
deaths impacted sentencing or rendered Appellant’s sentence an abuse of
discretion.
Next, Appellant avers that the trial court abused its discretion by
imposing an excessive sentence by sentencing Appellant outside of the
Sentencing Guidelines and ordering the sentences to run consecutively.
Appellant’s Brief at 31. After review, we conclude that no relief is due.
The Commonwealth asserts that Appellant failed to preserve any
challenge relative to the consecutive nature of the sentences imposed.
Commonwealth’s Brief at 23-24. We are constrained to agree. Therefore,
this claim is waived. Moury, 992 A.2d at 170.
What remains is Appellant’s bald assertion that the trial court erred in
sentencing him outside of the Sentencing Guidelines.8 Appellant’s argument
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8 Appellant also discusses the supposed impact that a rejected plea offer, or
“trial tax,” had on his sentence. Appellant’s Brief at 33-35. We conclude that
this claim is waived. Appellant did not raise this issue at the time of sentencing
or in his post-sentence motion. Moury, 992 A.2d at 170. Were we to reach
this issue, we would conclude it was meritless. Prior to trial, the trial court
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on this precise issue is sparse. However, we endeavor to determine if
Appellant has raised a substantial question.
It is well settled that a trial court is permitted to sentence a defendant
outside of the Sentencing Guidelines; however, when the court imposes such
a sentence, it must provide its reasons for deviating from the Guidelines. 42
Pa.C.S. § 9721(b). A claim that the trial court imposed a sentence outside of
the Sentencing Guidelines without stating adequate reasons raises a
substantial question. Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.
Super. 2007).
Here, however, Appellant never asserted that the trial court failed to
state adequate reasons for sentencing Appellant outside of the Guidelines.
Accordingly, we are constrained to conclude that Appellant failed to raise a
substantial question. Moreover, as noted above, the trial court provided a
thorough recitation of its reasons for imposing sentence, and we conclude that
if Appellant had presented this issue properly and raised a substantial
question, the rationale provided by the trial court aptly established the basis
for sentencing Appellant outside of the Sentencing Guidelines. See N.T.,
6/21/17, at 13-19. After review, we discern no abuse of discretion by the trial
court in the sentence imposed.
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discussed its rejection of the plea offer, but the trial court stated that it would
have no impact on the court’s rulings going forward. N.T., 5/10-12-17, at 9.
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For the reasons set forth above, we conclude that Appellant is entitled
to no relief on appeal. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/10/2019
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