Com. v. Petty, J. ( 2016 )

J-A28001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAMAL PETTY
Appellee No. 793 EDA 2015
Appeal from the Judgment of Sentence October 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004385-2007
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 01, 2016
Appellant, the Commonwealth of Pennsylvania, appeals from the
judgment of sentence entered in the Philadelphia County Court of Common
Pleas, following this Court’s remand for resentencing in connection with
Appellee, Jamal Petty’s, jury trial convictions for possession of a controlled
substance with the intent to deliver (“PWID”), criminal conspiracy, and
criminal use of a communication facility.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On April 21, 2005, May 4, 2005, May 18, 2005, and June 8, 2005, special
agents from the Attorney General’s Office set up controlled drug buys using
a confidential informant (“C.I.”). During each controlled buy, the agents
____________________________________________
1
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903; 7512, respectively.
J-A28001-15
conducted surveillance and observed the C.I. meet with Paul Villari to
purchase cocaine. Each time, the C.I. gave Mr. Villari money for the drugs,
Mr. Villari would meet his supplier to obtain the drugs, and Mr. Villari would
return and deliver the drugs to the C.I. The agents’ investigation of these
controlled buys led them to the area of the Thomas Jefferson University
Hospital, where Mr. Petty (Mr. Villari’s drug dealer) would supply him with
drugs outside of the hospital.
On September 21, 2005, special agents of the Attorney General’s
Office waited outside of the hospital for Mr. Petty in an effort to converse
with him and to try to “flip” him. In other words, the agents wanted to
obtain Mr. Petty’s cooperation with their ongoing drug investigation to learn
who was supplying Mr. Petty with drugs. When the agents identified
themselves, Mr. Petty made movements toward the back of his waistband
which indicated to the agents that Mr. Petty might be reaching for a weapon.
The agents then patted-down Mr. Petty and retrieved multiple baggies of
marijuana from Mr. Petty’s person; the agents did not find any weapons.
The agents asked Mr. Petty if they could speak with him, and Mr. Petty
agreed to speak with the agents in their vehicle. The agents also asked if
they could search Mr. Petty’s backpack for weapons, and Mr. Petty
consented to the search. The agents did not discover any weapons, but they
found cocaine, marijuana, and a digital scale.
The Commonwealth subsequently charged Mr. Petty with multiple
-2-
J-A28001-15
counts of PWID, criminal conspiracy, and criminal use of a communication
facility, in connection with the four controlled buys and the search and
seizure on September 21, 2005. Mr. Petty proceeded to a jury trial on June
26, 2008. On July 11, 2008, the jury reached its verdict. The jury acquitted
Mr. Petty of all charges related to the April 21, 2005 and May 4, 2005
controlled buys. With respect to the May 18, 2005 controlled buy, the jury
convicted Mr. Petty of PWID (cocaine), criminal use of a communication
facility, and conspiracy. Regarding the June 8, 2005 controlled buy, the jury
convicted Mr. Petty of PWID (cocaine), criminal use of a communication
facility, and conspiracy. Concerning the September 21, 2005 incident, the
jury convicted Mr. Petty of PWID (marijuana). The court deferred
sentencing until October 23, 2008.
Following the trial, the court asked the jurors to complete Jury
Selection Commission Questionnaires about their experiences as jurors. Two
unidentified jurors submitted responses indicating the court crier had given
other jury members information about Mr. Petty’s prior record and had
stated Mr. Petty was a “bad guy.” The court subsequently secured a copy of
the jury list for the attorneys and provided the attorneys with the names and
addresses of the jurors who had served on Mr. Petty’s trial, so that the
parties could investigate the matter further.
On October 23, 2008, the parties appeared before the court for the
scheduled sentencing hearing. Prior to sentencing, however, the court
-3-
J-A28001-15
discussed the alleged jury tampering and asked if the parties had brought in
any jurors to testify. Both parties indicated they had not brought in any
jurors to testify about the alleged jury tampering and declined the court’s
opportunity for more time to contact the jurors who had served on Mr.
Petty’s trial. At that time, Mr. Petty’s trial counsel made an oral motion for
extraordinary relief requesting dismissal of all charges for which Mr. Petty
was convicted based on the alleged jury tampering. Trial counsel stated he
did not subpoena any jurors because it was “unnecessary,” as the juror
notes “[spoke] for themselves.” The Commonwealth claimed the juror notes
were merely allegations and failed to meet Mr. Petty’s burden to prove jury
tampering. At the conclusion of the hearing, the court denied Mr. Petty’s
motion for extraordinary relief, but it ordered a new trial on the charges for
which Mr. Petty had been convicted. The court determined the juror notes
constituted “hard evidence” Mr. Petty was denied a fair trial, so a new trial
was the appropriate remedy.
On June 30, 2010, this Court reversed and remanded for sentencing.
See Commonwealth v. Petty, 4 A.3d 703 (Pa.Super. 2010) (unpublished
memorandum). This Court decided the juror notes were hearsay, which did
not constitute competent evidence to prove jury tampering. See id. Mr.
Petty did not file a petition for allowance of appeal with our Supreme Court.
The trial court scheduled a sentencing hearing for January 14, 2011.
At the commencement of the hearing, Mr. Petty made another motion for
-4-
J-A28001-15
extraordinary relief pursuant to Pa.R.Crim.P. 704(B)2 seeking judgment of
acquittal on all charges for which he was convicted, again based on the
alleged jury tampering. Alternatively, trial counsel asked the court to
appoint new counsel for Mr. Petty, to file a petition for allowance of appeal
nunc pro tunc from this Court’s June 30, 2010 decision. Trial counsel
explained he had been privately retained to represent Mr. Petty at his
preliminary hearing and at trial. Trial counsel stated he represented Mr.
Petty on appeal even though Mr. Petty was out of funds to pay for legal
services, and trial counsel did not file a petition for allowance of appeal due
to Mr. Petty’s financial inability to pay. The court held Mr. Petty’s motion for
extraordinary relief under advisement and said it would appoint new counsel
to investigate trial counsel’s potential ineffectiveness for, inter alia, failing to
file a petition for allowance of appeal on behalf of Mr. Petty and declining to
subpoena and call jurors as witnesses at the originally scheduled October 23,
2008 sentencing hearing.
Due to the court’s failure to sentence Mr. Petty at the January 14,
2011 hearing, the Commonwealth filed an application in this Court on
February 9, 2011, seeking enforcement of this Court’s June 30, 2010
decision, pursuant to Pa.R.A.P. 2591(b) (stating: “At any time, upon its own
____________________________________________
2
See Pa.R.Crim.P. 704(B)(1) (stating: “Under extraordinary circumstances,
when the interests of justice require, the trial judge may, before sentencing,
hear an oral motion in arrest of judgment, for a judgment of acquittal, or for
a new trial”).
-5-
J-A28001-15
motion or upon application, an appellate court may issue any appropriate
order requiring obedience to or otherwise enforcing its judgment or other
order”). This Court granted the Commonwealth’s application on March 2,
2011. This Court’s order expressly prohibited the trial court from
undertaking any collateral proceedings, including investigation of the
ineffective assistance of counsel, which must be raised in a Post Conviction
Relief Act (“PCRA”)3 petition following sentencing.
On April 1, 2011, the parties appeared for sentencing. The
Commonwealth informed the court certain mandatory minimum sentences
applied to Mr. Petty’s case. Specifically, the PWID conviction for the May 18,
2005 controlled buy carried a three (3) year mandatory minimum sentence
(see 18 Pa.C.S.A. § 7508(a)(3)(ii) (PWID for cocaine between 10-100
grams)); and the PWID conviction for the June 8, 2005 controlled buy
carried a seven (7) year mandatory minimum sentence (see 18 Pa.C.S.A. §
7508(a)(3)(iii) (PWID for cocaine over 100 grams, where defendant has
been convicted of another drug trafficking offense)). Consistent with those
mandatory minimum sentences, the court sentenced Mr. Petty to three (3)
to six (6) years’ imprisonment for the PWID conviction related to the May
18, 2005 controlled buy, and seven (7) to fourteen (14) years’ imprisonment
for the PWID conviction related to the June 8, 2005 controlled buy. The
____________________________________________
3
42 Pa.C.S.A. §§ 9541-9546.
-6-
J-A28001-15
court sentenced Mr. Petty to one (1) year of probation for the PWID
(marijuana) conviction related to the September 21, 2005 incident.
Regarding Mr. Petty’s criminal use of a communication facility and conspiracy
convictions, the court sentenced Mr. Petty to three (3) years’ probation for
each conviction. The court imposed all sentences concurrently. The court
also imposed the mandatory $50,000.00 fine under Section 7508(a)(3)(iii).
The court stayed the sentence pending post-sentence motions. The court
also permitted trial counsel to withdraw from the case and appointed new
counsel (“replacement counsel”) to represent Mr. Petty.4
On April 11, 2011, Mr. Petty timely filed a post-sentence motion
requesting additional time to file a supplemental post-sentence motion after
receipt of the relevant notes of testimony. The court did not rule on the
motion. Mr. Petty filed a supplemental post-sentence motion on March 23,
2012, indicating replacement counsel had received the relevant notes of
testimony but had not received transcription of audio tapes presented at
trial. Replacement counsel requested transcription of the audio tapes.
Replacement counsel also challenged, inter alia, the weight and sufficiency
of the evidence produced at trial and trial counsel’s effectiveness. Mr. Petty
filed a supplement to his supplemental post-sentence motion on March 27,
____________________________________________
4
Notwithstanding the court’s indication at the January 14, 2011 sentencing
hearing, that it was appointing new counsel to represent Mr. Petty, trial
counsel remained counsel of record for Mr. Petty until sentencing on April 1,
2011.
-7-
J-A28001-15
2012. Meanwhile, Mr. Petty also filed a PCRA petition asserting trial
counsel’s ineffectiveness for failing to file a petition for allowance of appeal
with our Supreme Court from this Court’s June 30, 2010 decision, and
requesting reinstatement of Mr. Petty’s right to file a petition for allowance
of appeal nunc pro tunc. Due to the fact that Mr. Petty still had not begun
serving his sentence, the Commonwealth filed a motion to revoke bail and to
order Mr. Petty to commence serving his sentence.
On April 9, 2012, the court held a hearing regarding the parties’
respective filings. The Commonwealth alleged the court lacked jurisdiction
to rule on Mr. Petty’s post-sentence motions because the 120-day timeframe
had expired,5 so the Commonwealth submitted Mr. Petty’s post-sentence
motions were effectively denied by operation of law. The Commonwealth
also maintained the court lacked jurisdiction to entertain Mr. Petty’s PCRA
claims because Mr. Petty had not begun serving his sentence, so he was
ineligible for PCRA relief. The court disagreed with the Commonwealth’s
contentions and scheduled a hearing for Mr. Petty’s post-sentence motions.
On December 10, 2012, the parties appeared for the hearing on Mr.
Petty’s post-sentence motions. Prior to the hearing, the Commonwealth
again submitted that the court lacked jurisdiction to rule on the post-
sentence motions and requested that the trial court direct the Clerk of
____________________________________________
5
See Pa.R.Crim.P. 720(B)(3) (discussing time limits for decision on post-
sentence motions).
-8-
J-A28001-15
Courts to issue an order denying the post-sentence motions by operation of
law. The court denied the Commonwealth’s request. Replacement counsel
stated she had no notice from the Clerk of Courts that the post-sentence
motions had been denied by operation of law and wanted to proceed with
the hearing. Replacement counsel presented two witnesses at the hearing
who offered character testimony on Mr. Petty’s behalf.
On January 24, 2013, Mr. Petty filed an amended PCRA petition. The
court held another hearing on Mr. Petty’s post-sentence motions on January
28, 2013. Replacement counsel presented two more witnesses who offered
character testimony on Mr. Petty’s behalf. Replacement counsel then called
trial counsel to testify about, inter alia, his decisions not to call character
witnesses at Mr. Petty’s trial or subpoena jurors for the originally scheduled
October 23, 2008 sentencing hearing or file a petition for allowance of
appeal on Mr. Petty’s behalf from this Court’s June 30, 2010 decision. At the
conclusion of the hearing, the court took the post-sentence motions under
advisement.
On April 1, 2013, the parties appeared for another hearing.
Significantly, the parties stipulated that the Clerk of Courts had failed to
issue an order denying the post-sentence motions by operation of law, and
the trial court should issue an order deeming the post-sentence motions
denied by operation of law. The court accepted the parties’ stipulation and
issued an order deeming the post-sentence motions denied by operation of
-9-
J-A28001-15
law on April 1, 2013. The parties also stipulated that the court should
dismiss the PCRA filings without prejudice for Mr. Petty to file subsequent
PCRA petitions following a direct appeal; and that the hearings held
December 10, 2012 and January 28, 2013, shall constitute evidence for any
subsequent PCRA proceedings. The court accepted the parties’ stipulations
and permitted Mr. Petty to continue to remain on bail, with his sentence
stayed, pending direct appeal from the judgment of sentence. The court
expressed its belief that Mr. Petty should remain on bail due to some “good
appellate issues,” particularly with regard to the alleged jury tampering.
On April 26, 2013, Mr. Petty timely filed a direct appeal challenging the
weight and sufficiency of the evidence produced at trial, the denial of his
pre-trial suppression motion, and the legality of his sentence. This Court
vacated and remanded for resentencing on June 20, 2014, based on the trial
court’s imposition of mandatory minimum sentences as inconsistent with
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013) (holding any fact increasing mandatory minimum sentence for crime
is considered element of crime to be submitted to fact-finder and found
beyond reasonable doubt). See Commonwealth v. Petty, 2014 WL
10919350 (Pa.Super. June 20, 2014) (unpublished memorandum)
(concluding imposition of mandatory minimum sentences for Mr. Petty’s
PWID (cocaine) convictions violated Alleyne, where jury made no
- 10 -
J-A28001-15
determination regarding weight of drugs).6 Based on this Court’s
disposition, it declined to address any of Mr. Petty’s other claims on appeal.
On October 15, 2014, the parties appeared for resentencing.
Replacement counsel acknowledged the court had the benefit of a pre-
sentence investigation (“PSI”) report. Replacement counsel also discussed
Mr. Petty’s family history and prior employment. Replacement counsel
offered as exhibits photographs of Mr. Petty and his family and letters from
Mr. Petty’s friends and family. Replacement counsel indicated several
witnesses were present at the hearing who wished to testify about Mr.
Petty’s good character.
The Commonwealth stressed that Mr. Petty has continued to escape
serving his sentence throughout these proceedings. The Commonwealth
also highlighted that Mr. Villari (Mr. Petty’s cohort) pled guilty to PWID and
conspiracy, and received a four (4) to eight (8) year sentence. The
Commonwealth argued Mr. Petty should receive a harsher sentence than Mr.
Villari, as Mr. Petty supplied the drugs to Mr. Villari, who was merely the
middleman. The Commonwealth set forth the applicable sentencing
guidelines and recommended an aggregate seven (7) year minimum
sentence. During the course of the hearing, replacement counsel made
____________________________________________
6
This Court subsequently declared the mandatory minimum statute at issue,
18 Pa.C.S.A. § 7508, unconstitutional in its entirety. See Commonwealth
v. Fennell, 105 A.3d 13 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 121
A.3d 494 (2015).
- 11 -
J-A28001-15
reference to the alleged jury tampering in this case. The court
acknowledged the alleged jury tampering; and the Commonwealth made an
oral motion for the court to recuse itself, based on the court’s purported
inability to separate the alleged jury tampering from the resentencing
proceedings. The court did not expressly rule on the motion, and the
hearing continued.
Mr. Petty testified about his employment, family life, contributions to
the community, and personal growth since the time of trial. Mr. Petty
requested leniency in sentencing so he could continue to take care of his
family. The court also heard testimony from Mr. Petty’s character witnesses.
At the conclusion of the hearing, the court sentenced Mr. Petty to
eleven and one-half (11½) to twenty-three (23) months’ imprisonment, plus
one (1) year of probation, for each of Mr. Petty’s convictions. The court
imposed all sentences concurrently. The court also granted Mr. Petty
immediate parole, with telephone reporting probation once a month. The
court waived the supervision fee and did not impose any fines. The court
stated:
Because he has his children and he’s working—he seems to
be a hard worker. He’s taking care of four kids. He seems
to have made a turnaround in life. He has character
witnesses who have come here and spoken highly of him.
People do make mistakes in life. However, people also
deserve to have a second chance in life, and I try to do
that. I believe he’s going to be a law-abiding citizen for
the rest of his life. I took into consideration that he’s had
- 12 -
J-A28001-15
the sword of Damocles hanging over his head for the last
seven years, and that was worth a lot.
And that’s why I made the probation so short, because, in
my opinion, he’s been on probation for the last seven
years.
(N.T. Resentencing Hearing, October 15, 2014, at 51-52; R.R. at 188).
On October 25, 2014, the Commonwealth timely filed a post-sentence
motion, which the court denied on February 26, 2015. The Commonwealth
timely filed a notice of appeal on March 16, 2015. On March 24, 2015, the
court ordered the Commonwealth to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), which the
Commonwealth timely filed on March 30, 2015.
The Commonwealth raises one issue for our review:
WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
BY IMPOSING AN EXCESSIVELY LENIENT SENTENCE
WHICH UNREASONABLY DEVIATED FROM THE
SENTENCING GUIDELINES, FAILED TO ADEQUATELY
EXPLAIN ITS REASONS FOR GUIDELINE DEPARTURE AND
DISPARATE SENTENCING OF THE CO-DEFENDANT AND
THE SENTENCE WAS MOTIVATED BY BIAS?
(Commonwealth’s Brief at 4).
The Commonwealth argues the court’s sentence was excessively
lenient and an unreasonable deviation from the sentencing guidelines. The
Commonwealth asserts Mr. Petty served only twenty-seven days in jail from
the date of his arrest until the date he posted bail. The Commonwealth
emphasizes that the court also waived the supervision fees, did not order
Mr. Petty to pay a fine, and directed that Mr. Petty be placed on monthly
- 13 -
J-A28001-15
telephone reporting probation. The Commonwealth stresses the court failed
to acknowledge its departure from the guidelines and did not provide
adequate reasons for its extreme deviation from the guidelines. The
Commonwealth suggests the court’s remarks on-the-record after it had
already sentenced Mr. Petty related only to why the trial court imposed such
a short probationary period, but not why the court deviated drastically from
the sentencing guidelines. The Commonwealth suggests the court also
lacked authority to grant Mr. Petty immediate parole, prior to the expiration
of his minimum sentence.
The Commonwealth further argues the court did not articulate any
reasons to justify its disparate sentences for Mr. Petty and his cohort, Mr.
Villari. The Commonwealth asserts Mr. Villari pled guilty on June 23, 2008,
to PWID and conspiracy, and received an aggregate sentence of four to eight
years’ imprisonment. The Commonwealth maintains Mr. Petty was the drug
supplier and Mr. Villari was just a lower level drug dealer. Although the
Commonwealth discussed Mr. Villari’s sentence at Mr. Petty’s resentencing
hearing, the court ignored the Commonwealth’s position that Mr. Petty
should receive a harsher sentence than Mr. Villari. The Commonwealth
claims the sentencing disparity is particularly troubling, given the fact that
Mr. Villari was less culpable than Mr. Petty and took responsibility for his
actions by entering a guilty plea.
The Commonwealth also insists the record demonstrates the trial
- 14 -
J-A28001-15
court’s bias in favor of Mr. Petty throughout these proceedings. The
Commonwealth submits the court accepted as fact the content of the juror
notes in this case and determined jury tampering took place, despite the
Superior Court’s decision reversing the award of a new trial. The
Commonwealth emphasizes that the trial court refused to sentence Mr. Petty
immediately upon remand. Instead, the Commonwealth insists the court
took under advisement Mr. Petty’s second motion for extraordinary relief,
made orally at the January 14, 2011 sentencing hearing, which raised the
same issue regarding jury tampering that the Superior Court had already
decided. The Commonwealth submits the court indicated it would appoint
new counsel to investigate PCRA issues, disregarding the Commonwealth’s
argument that Mr. Petty was ineligible for PCRA relief as he had not yet been
sentenced. The Commonwealth insists the trial court’s failure to sentence
Mr. Petty in a timely manner compelled the Commonwealth to file an
application for enforcement of the Superior Court’s June 30, 2010 decision.
The Commonwealth contends the court exhibited its bias once again
when it immediately stayed Mr. Petty’s sentence on April 1, 2011. The
Commonwealth avers the court also ignored the Rules of Criminal Procedure
regarding post-sentence motions by holding evidentiary hearings on the
post-sentence motions far beyond the applicable timeframe in which to rule
on them. The Commonwealth submits the court further displayed its bias
when it stated at the April 1, 2013 hearing that Mr. Petty had a “good
- 15 -
J-A28001-15
appellate issue” regarding the jury tampering allegations, when the Superior
Court had already decided that issue. The Commonwealth declares the
court’s leniency upon resentencing, coupled with the grant of immediate
parole, imposition of no fines, waiver of supervision fees, and short
telephone-reporting probationary term, demonstrate the bias that motivated
the court’s sentence.
The Commonwealth concludes the court imposed an excessively
lenient sentence which unreasonably deviated from the sentencing
guidelines, the court failed to state adequate reasons for the guideline
departure, the court did not acknowledge the disparity in sentences between
Mr. Petty and his cohort, the court’s sentence was motivated by bias, and
this Court must vacate and remand for resentencing before a different jurist.
As presented, the Commonwealth’s claims implicate the discretionary
aspects of sentencing. See Commonwealth v. Antidormi, 84 A.3d 736(Pa.Super. 2014), appeal denied, 626 Pa. 681, 95 A.3d 275 (2014) (stating
claims that court imposed sentence outside of sentencing guidelines without
stating adequate reasons for sentence imposed implicates discretionary
aspects of sentencing); Commonwealth v. Corley, 31 A.3d 293 (Pa.Super.
2011) (explaining allegation that court’s sentence was motivated by bias
challenges discretionary aspects of sentencing); Commonwealth v.
Cleveland, 703 A.2d 1046 (Pa.Super. 1997), appeal denied, 555 Pa. 739,
725 A.2d 1218 (1998) (reasoning claim of unexplained disparity between
- 16 -
J-A28001-15
appellant’s and his co-defendant’s sentences challenges court’s sentencing
discretion); Commonwealth v. Moore, 617 A.2d 8 (Pa.Super. 1992)
(explaining Commonwealth’s claim that sentence imposed was excessively
lenient and clearly unreasonable under facts and circumstances of case
presents discretionary sentencing challenge).
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979(2001). Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether 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
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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are waived if they are
not raised at the sentencing hearing or in a timely filed post-sentence
motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013).
What constitutes a substantial question must be evaluated on a case-
by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).
- 17 -
J-A28001-15
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. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal
citation omitted). In other words, an appellant’s Rule 2119(f) statement
must sufficiently articulate the manner in which 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. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).
On appeal, this Court will not disturb the judgment of the sentencing
court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d
843 (Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to
determine the proper penalty for a particular offense based
upon an evaluation of the individual circumstances before
it. Simply stated, the sentencing court sentences flesh-
and-blood defendants and the nuances of sentencing
- 18 -
J-A28001-15
decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing
court enjoys an institutional advantage to appellate review,
bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed. Even with
the advent of the sentencing guidelines, the power of
sentencing is a function to be performed by the sentencing
court. Thus, rather than cabin the exercise of a sentencing
court’s discretion, the guidelines merely inform the
sentencing decision.
* * *
[W]e reaffirm that the guidelines have no binding effect,
create no presumption in sentencing, and do not
predominate over other sentencing factors—they are
advisory guideposts that are valuable, may provide an
essential starting point, and that must be respected and
considered; they recommend, however, rather than
require a particular sentence. …
Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65
(2007) (internal quotation marks, footnotes, and citations omitted).
Furthermore, in exercising its discretion, the sentencing
court may deviate from the guidelines, if necessary, to
fashion a sentence that takes into account the protection
of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the
impact on the life of the victim and the community, so long
as the court also states of record the factual basis and
specific reasons which compelled the deviation from the
guidelines. This Court must remand for resentencing with
instructions if we find that the sentencing court sentenced
outside the guidelines and the sentence was unreasonable.
Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001), appeal
denied, 568 Pa. 695, 796 A.2d 979 (2002) (internal citations omitted).
Pursuant to Section 9721(b), “the court shall follow the general
principle that the sentence imposed should call for confinement that is
- 19 -
J-A28001-15
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he
court shall make as 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.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475(2010). Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id.See also Commonwealth v. Fowler, 893 A.2d 758 (Pa.Super. 2006)
(stating where sentencing court had benefit of PSI report, we can presume it
was aware of relevant information regarding defendant’s character and
weighed those considerations along with mitigating statutory factors).
Additionally, we observe:
[G]enerally…issues not raised in a Rule 1925(b) statement
will be deemed waived for review. An appellant’s concise
statement must properly specify the error to be addressed
on appeal. In other words, the Rule 1925(b) statement
must be “specific enough for the trial court to identify and
address the issue [an appellant] wishe[s] to raise on
appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d
956 (2007). “[A] [c]oncise [s]tatement which is too vague
to allow the court to identify the issues raised on appeal is
the functional equivalent of no [c]oncise [s]tatement at
all.” Id. The court’s review and legal analysis can be
- 20 -
J-A28001-15
fatally impaired when the court has to guess at the issues
raised. Thus, if a concise statement is too vague, the
court may find waiver.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (some internal citations omitted).
See also Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005)
(holding issues not raised in Rule 1925(b) statement are waived on appeal).
Instantly, the Commonwealth raised the following issues in its Rule
1925(b) statement: (1) the court abused its discretion by imposing an
excessively lenient sentence and unreasonably deviated from the sentencing
guidelines; (2) the court failed to adequately explain the reasons for
departing from the sentencing guidelines; and (3) the court’s sentence
compromised the sentencing scheme as a whole, was inconsistent with the
Sentencing Code and the sentence was contrary to the fundamental norms
of sentencing. (See Commonwealth’s Rule 1925(b) Statement, filed March
30, 2015, at 1-2.) Significantly, the Commonwealth did not include in its
Rule 1925(b) statement its claims on appeal that the court failed to explain
the disparity in sentences between Mr. Petty and Mr. Villari or that the
court’s sentence was motivated by bias. Thus, the disparity and bias claims
are waived.7 See Castillo, supra. Notably, the trial court did not address
____________________________________________
7
Additionally, the Commonwealth failed to articulate these precise claims of
error in its post-sentence motion. (See Commonwealth’s Post-Sentence
Motion, filed October 25, 2014, at 3.) See also Griffin, supra. Instead,
(Footnote Continued Next Page)
- 21 -
J-A28001-15
these complaints in its Rule 1925(a) opinion. Consequently, to the extent
the Commonwealth purported to include these claims within its statement
that “the court’s sentence compromised the sentencing scheme as a whole,
was inconsistent with the Sentencing Code and the sentence was contrary to
the fundamental norms of sentencing,” the Commonwealth’s Rule 1925(b)
statement was too vague to allow the court to identify those issues,
constituting waiver. See Hansley, supra.The Commonwealth’s remaining claims of leniency and failure to state
adequate reasons for the guideline departure present substantial questions
which warrant our review. See Antidormi, supra (explaining allegation
sentencing court imposed sentence outside of guidelines without stating
adequate reasons on record presents substantial question); Kenner, supra(stating Commonwealth’s claim sentence imposed was excessively lenient
and unreasonably deviated from guidelines raises substantial question).
_______________________
(Footnote Continued)
the Commonwealth sought to incorporate these claims in its post-sentence
motion by reference to the arguments it made at the resentencing hearing.
Nevertheless, Pennsylvania law disapproves of “incorporation by reference”
in legal filings. See, e.g., Commonwealth v. Briggs, 608 Pa. 430, 12
A.3d 291 (2011), cert. denied, ___ U.S. ___, 132 S.Ct. 267, 181 L.Ed.2d
157 (2011) (stating “incorporation by reference” is unacceptable manner of
appellate advocacy for proper presentation of claim for relief);
Commonwealth v. Smith, 955 A.2d 391, 393 n.5 (Pa.Super. 2008) (en
banc) (stating: “We do not condone the Commonwealth’s incorporation by
reference of its motion for reconsideration” in its Rule 1925(b) statement).
Consequently, the Commonwealth’s claims regarding the disparity in
sentencing and the court’s alleged bias are arguably waived on this basis as
well.
- 22 -
J-A28001-15
In analyzing the Commonwealth’s sentencing challenges, the trial
court reasoned:
This [c]ourt was well aware of the Sentencing Guidelines
at the time it sentenced [Mr. Petty]. As can be seen from
the record, the guidelines were laid out by the
Commonwealth, and this [c]ourt acknowledged that its
sentence deviated from the guidelines. This [c]ourt heard
lengthy arguments from both [replacement counsel] and
the Commonwealth as well as testimony from [Mr. Petty’s]
wife, Ebony Pitts, and [Mr. Petty] himself. In addition to
Ms. Pitts, [Mr. Petty’s] sister, Ms. Pitts’ father and
stepmother, and Ms. Pitts’ mother were present to support
[Mr. Petty] and offer testimony on his behalf. This [c]ourt
also considered letters, affidavits, and photographs
attached to [Mr. Petty’s] Resentencing Memorandum of
Law, which was submitted by [replacement counsel]
during the hearing and is attached as Exhibit A. This
[c]ourt heard testimony that [Mr. Petty] and his wife have
four children, including two of Ms. Pitts’ children from
previous relationships. By all accounts, [Mr. Petty] has
supported his step-children and raised them as his own
since becoming involved with Ms. Pitts. [Mr. Petty] works
two jobs to support his family, as his wife has medical
problems that prevent her from working. Ms. Pitts’
mother, Ms. Marshall, testified that [Mr. Petty] is a good
person who took care of her after she had a stroke.
At the time of [resentencing], this [c]ourt noted that [Mr.
Petty] is a hard worker, and that he will likely be a law-
abiding citizen going forward. This [c]ourt was particularly
impressed by the efforts [Mr. Petty] has made to improve
his life since his arrest in 2007, and by [Mr. Petty’s] family
support. This [c]ourt also took into consideration that, at
the time of sentencing, [Mr. Petty’s] case had been
ongoing for approximately 7 years, during which time [Mr.
Petty] has had no additional contacts with the criminal
justice system.
Based on the foregoing, it is clear that this [c]ourt did
properly consider the guidelines when fashioning [Mr.
Petty’s] sentence, and that its deviation, though
significant, was not “unreasonable” or without adequate
- 23 -
J-A28001-15
explanation. As such, the sentence of this [c]ourt must
stand.
(Trial Court Opinion, filed May 18, 2015, at 6-7) (internal citations omitted).
We see no reason to disrupt the court’s broad sentencing discretion. See
Walls, supra; Fullin, supra; Kenner, supra.The record confirms the Commonwealth set forth the applicable
sentencing guidelines at the resentencing hearing, and the court chose to
deviate from those guidelines. The court remarked that Mr. Petty has
children and was working hard to support his family. The court
acknowledged Mr. Petty’s character witnesses who spoke highly on his
behalf. The court expressed its belief that Mr. Petty had “made a turnaround
in life” and would “be a law-abiding citizen for the rest of his life.” (See N.T.
Resentencing Hearing at 51-52; R.R. at 188.) The court also emphasized
the fact that Mr. Petty had the weight of these proceedings on his shoulders
for seven years, “and that was worth a lot.” (See id.) The court’s
statements at the time of resentencing make clear the court gave due
consideration to the facts of this case and to Mr. Petty’s character, and
provided reasons for its deviation from the guidelines.8 See Crump, supra;Kenner, supra. See also Walls, supra.Additionally, the jurist who presided over Mr. Petty’s resentencing
____________________________________________
8
We reject the Commonwealth’s position that the court’s remarks pertained
solely to why the court imposed such a short probationary term.
- 24 -
J-A28001-15
proceeding also presided over Mr. Petty’s trial and all proceedings since the
2008 trial. Thus, the court was well aware of the circumstances of this case,
the nature of the offenses at issue, Mr. Petty’s rehabilitative needs, and the
gravity of the offenses as they relate to the impact on the community. See
Kenner, supra; 42 Pa.C.S.A. § 9721(b). The court also had the benefit of a
PSI report, so we can presume the court was aware of relevant information
regarding Mr. Petty’s character and weighed those considerations along with
mitigating factors. See Fowler, supra. Given the circumstances of this
case and in light of the court’s remarks at the resentencing hearing and in
its Rule 1925(a) opinion, we cannot say the court’s sentence was
“unreasonable.”9 See Kenner, supra. Therefore, the Commonwealth’s
challenge to the court’s sentencing discretion merits no relief. See Walls,
supra; Fullin, supra; Kenner, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
____________________________________________
9
Further, the trial court had authority to grant Mr. Petty immediate parole
where the court imposed a maximum term of imprisonment that was less
than two years. See 61 Pa.C.S.A. § 6132(a), (b) (stating parole board shall
have exclusive power to parole and re-parole; except for special cases,
powers and duties conferred by this section shall not extend to persons
sentenced for maximum period of less than two years; nothing in this
section shall be construed to prevent trial court from paroling any person
sentenced by it for maximum period of less than two years).
- 25 -
J-A28001-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2016
- 26 -