Com. v. Ruth, M. ( 2015 )

J-S50033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL RUTH
Appellant No. 2627 EDA 2014
Appeal from the Judgment of Sentence June 5, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008965-2011
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 23, 2015
Appellant Michael Ruth appeals from the judgment of sentence entered
in the Montgomery County Court of Common Pleas on June 5, 2014 following
his jury trial convictions for corrupt organizations, dealing in unlawful
proceeds, insurance fraud, identity theft, and conspiracy to commit
insurance fraud and identity theft.1 We affirm.
The trial court set forth the relevant facts as follows:
Over a nearly two-year period beginning in early 2010,
[Appellant’s] father, Richard Ruth [(“co-defendant”)], a
then-practicing physician, unlawfully prescribed tens of
thousands of pills from his office in Souderton,
Montgomery County, acting as a source of Oxycodone and
Adderall for drug-addicted patients. [Appellant] served as
his father’s office manager during this period.
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1
18 Pa.C.S. §§ 911(b)(2), 5111(a)(1), 4117(a)(2), 4120(a), and 903(c),
respectively.
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Appellant and his father were co-defendants at a joint trial.
A jury found [Appellant] guilty on November 22, 2013, of
corrupt organizations, dealing in unlawful proceeds,
insurance fraud, identity theft[,] and conspiracy to commit
insurance fraud and identity theft.
Prior to sentencing, one of [co-defendant’s] two attorneys,
Gregory Noonan, was charged in Montgomery County with
possession of a controlled substance with intent to deliver
and related offenses. [Appellant] was represented at trial
by Vincent Cirillo, Esquire.
[On June 5, 2014, Appellant] appeared at sentencing with
new counsel.[2] [The trial] court sentenced [Appellant] to
two to five years in prison on the corrupt organizations
offense, two to five years in prison for dealing in unlawful
proceeds, six to 12 months in prison for conspiracy to
commit insurance fraud, one to five years in prison for
conspiracy to commit identity theft, one to five years in
prison for identity theft and six to 12 months in prison for
insurance fraud. The sentences, which were set to run
consecutively, were set in the aggravated range and
aggregated to seven to 22 years in prison.
[Appellant] filed a post-sentence motion. He asserted his
sentence was excessive under the circumstances, the
prosecutor violated a duty to disclose that Noonan had
been under investigation at or around the time of trial and
he was denied the effective assistance of counsel because
Noonan had an alleged conflict of interest. [The trial]
court denied the motion without a hearing.
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2
On June 5, 2014, the day of sentencing, new counsel filed a motion for
extraordinary relief, seeking a new trial because Noonan was being
investigated for drug-related offenses at the time of Appellant’s trial.
Defendant’s Motion for Extraordinary Relief, filed June 5, 2014. On June 6,
2014, the trial court denied this motion. Order, 6/6/2014.
At sentencing and on appeal, Appellant and his father are both represented
by Francis J. Genovese, Esq. of Mullaney & Mullaney.
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Pa.R.A.P. 1925(a) Opinion, 11/12/2014 (“Opinion”), at 1-3. Appellant filed a
timely notice of appeal. Both Appellant and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
Did the [t]rial [c]ourt err in denying [Appellant’s] [p]ost[-
s]entence [m]otion for an [e]videntiary [h]earing (in
support of the [p]ost[-s]entence [m]otion for a [n]ew
[t]rial), where his request for [p]ost-s]entence [r]elief had
at least arguable merit, on its face, thus necessitating that
a hearing be held to more fully develop the record with
respect to the violation of [Appellant’s] Due Process rights
as guaranteed by the Fourteenth Amendment to the United
States Constitution?
Did the [t]rial [c]ourt err in denying [Appellant’s] [p]ost[-
s]entence [m]otion for a [n]ew [t]rial, where the
Commonwealth violated [Appellant’s] Due Process rights
as guaranteed by the Fourteenth Amendment to the United
States Constitution, when it failed to disclose to the Court
that the District Attorney’s Office was actively investigating
[l]ead [t]rial [c]ounsel for his involvement in the illegal
distribution of narcotics while he was representing the [co-
defendant] at the trial in the above-captioned matter?
Did the [t]rial [c]ourt abuse its discretion in sentencing
[Appellant] to two (2) consecutive terms of two (2) to five
(5) years of incarceration; followed by two (2) consecutive
terms of one (1) to five (5) years of incarceration; followed
by two (2) consecutive terms of six (6) to twelve (12)
months of incarceration in a State Correctional Institution,
each of which constituted a sentence in the aggravated
range of the Sentencing Guidelines, where the charges to
which he was found guilty were not separate and distinct
incidents of criminality, but rather one episodic and
continuing course of criminal conduct?
Appellant’s Brief at 5-6.
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Appellant’s first two issues are based on the same underlying claim,
that the Commonwealth violated Appellant’s due process rights under the
Fourteenth Amendment to the United States Constitution when it failed to
inform the trial court and Appellant that the District Attorney’s Office was
investigating Noonan, his father’s attorney, for distribution of narcotics.
Appellant’s Brief at 21-22, 32-34, 37-39. Appellant claims the trial court
erred when it denied his post-sentence motion raising the due process claim
and erred in failing to hold an evidentiary hearing on the claim. Id. at 33,
39.
We review a trial court’s denial of a post-sentence motion requesting a
new trial for abuse of discretion. Commonwealth v. Brooker, 103 A.3d
325, 332 (Pa.Super.2014). The trial court has discretion as to whether to
conduct a hearing on a post-sentence motion. See Pa.R.Cr.P. 720(b)(2)(B)
(“The judge shall also determine whether a hearing or argument on the
motion is required, and if so, shall schedule a date or dates certain for one
or both.”). An abuse of discretion “is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will . . . discretion is abused.” Brooker, 103 A.3d at
332 (quoting Commonwealth v. Fortenbaugh, 69 A.3d 191, 193
(Pa.2013)).
Appellant claims the Commonwealth had a duty to disclose to the trial
court and/or Appellant that Noonan, his co-defendant’s counsel, was under
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investigation for involvement in illegal drug trafficking. Appellant’s Brief at
33. He notes that the crimes for which Noonan was charged occurred on
November 23, 2013, the day after a jury convicted Appellant of the afore-
mentioned charges, and on December 20, 2013, and claims the investigation
began before or during Appellant’s trial. Id. at 9-10. He maintains that,
because Noonan was under investigation for illegal activities similar to the
crimes for which Appellant’s co-defendant was charge, Noonan had a conflict
of interest, which prevented Appellant from receiving a fair trial. Id. at 21-
22, 29, 33.
This claim is meritless. Noonan was counsel for Appellant’s co-
defendant and owed no duty to Appellant, and no conflict of interest
between Appellant and co-defendant’s counsel existed. Appellant’s claim
the Commonwealth had a duty to inform the court and/or Appellant because
Noonan was “lead counsel” is meritless and, as the trial court found, the
record belies this claim.
The trial court found:
[Appellant] had his own counsel throughout the pre-trial
and trial stages of this case, and the record is replete with
references by defense counsel to which defendant they
represented. See, e.g., N.T. 11/19/13, p. 38 (“Good
morning, ladies and gentlemen. My name is Vincent Cirillo,
and I represent [Appellant], [co-defendant’s] son.”); Id. at
84 (“My name is Gregory Noonan, and I represent [co-
defendant].”); N.T. 11/21/13, p. 45 (“My name is Gregory
Noonan. I, along with John Walfish, represent [co-
defendant].”); Id. at 57 (“Lieutenant, my name is Vince
Cirillo, and I represent [Appellant].”); N.T. 11/22/ 13, p.
154 (“Ladies and Gentlemen of the Jury, as you know, I
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along with my partner John Walfish, we represent [co-
defendant].”).
Noonan never entered his appearance on behalf of
[Appellant]. Attorney Cirillo made an opening statement
on behalf of [Appellant], examined witnesses
independently of counsel for [co-defendant] and gave a
closing argument on behalf of his client. As such,
[Appellant] does not have standing to raise a claim related
to his co-defendant’s attorney.9
9
Defendant cites Hoffman v. Leeke, 903 F.2d 280
(4th Cir.1990), for the proposition that the
ineffective assistance of lead counsel is not cured by
the presence of co-counsel. His reliance on this case
is misplaced. The record here does not support the
proposition that Noonan was lead counsel for both
defendants. Moreover, in Hoffman, the attorney
represented two defendants in a joint murder trial
and used co-counsel to assist him with examining
certain witnesses. That is not the case here.
Opinion, at 5-6. The trial court acted within its discretion in denying
Appellant’s motion for a new trial.3
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3
Further, the trial court did not err when it found, even if Noonan owed a
duty to Appellant, the claim is meritless. Even if we assume a conflict of
interested existed, the prosecutor did not violate Appellant’s Fourteenth
Amendment due process right to a fair trial when it failed to disclose to the
trial court or Appellant that Appellant’s co-defendant’s attorney was under
criminal investigation, particularly because no trial witness possessed
information relevant to the investigation of Appellant’s attorney, the
investigation did not implicate Appellant, and the Commonwealth had not
yet established whether Appellant’s co-defendant’s counsel had engaged in
any illegal activity. See, e.g., United States v. Morelli, 169 F.3d 798, 812
(3d Cir.1999)(prosecutor’s failure to inform court of conflict does not require
reversal); United States v. Cerro, 872 F.2d 780, 787 (7th Cir.1989)
(prosecutor not constitutionally required to advise court of potential conflict
of interest).
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Further, the trial court acted within its discretion in denying Appellant’s
request for an evidentiary hearing. The trial court concluded:
Here, disposition of the post-sentence motion did not
necessitate a hearing. As discussed more fully below,
[Appellant], who was represented by his own counsel,
lacks standing to assert a claim that the prosecution owed
a duty to disclose an investigation into Noonan; even if he
had standing, he presented no controlling authority for the
existence of such a duty. Similarly, his motion did not
present a meritorious basis for [the trial] court to upset
the sentence imposed. [The trial] court, therefore, did not
abuse its discretion in disposing of the post-sentence
motion without a hearing.
Opinion, 11/12/2015, at 4 (internal footnotes omitted). We find no abuse of
discretion in the trial court’s determination.
Appellant’s third claim challenges the discretionary aspects of his
sentence.
“Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super.2000)). Before this Court can address a discretionary
challenge, we must engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see
also Allen, 24 A.3d at 1064.
Appellant timely filed his notice of appeal and included a concise
statement of reasons in his appellate brief. Further, he raised an
excessiveness claim in his post-sentence motion. His post-sentence motion,
however, did not raise a claim that the trial court failed to consider
mitigating factors or Appellant’s rehabilitative needs.
Appellant’s brief contains a statement of reasons relied upon for
allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure
2119(f). Appellant’s Brief at 16-20. Appellant maintains the trial court
failed to properly consider the information contained in the pre-sentence
investigation report, including Appellant’s history and characteristics and his
rehabilitative needs. Id. at 18. He argues the trial court “focused solely on
the serious nature of the offense(s) and the suffering inflicted upon the
victim(s) as justification for imposing six consecutive, aggravated range
sentences upon Appellant.” Id. at 19. He notes the trial court sentenced
Appellant to six consecutive, aggravated range sentences, for a total
aggregate sentence of not less than seven nor more than twenty-two years
of imprisonment. Id. He argues the sentence was “manifestly
unreasonable, unduly excessive and extremely vindictive; considering that
the charges to which he was found guilty were not separate and distinct
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incidents of criminality, but rather one episodic and continuing course of
criminal conduct.” Id. at 20.
Although Appellant’s post-sentence motion and Rule 1925(b)
statement challenge the sentence as excessive, they do not challenge the
failure to consider mitigating circumstances. See 1925(b) Statement (“Did
the Trial Court abuse its discretion in sentencing Defendant to two (2)
consecutive terms of two (2) to five (5) years of incarceration; followed by
two (2) consecutive terms of one (1) to five (5) years of incarceration;
followed by two (2) consecutive terms of six (6) to twelve (12) months of
incarceration in a State Correctional Institution, each of which constituted a
sentence in the aggravated range of the Sentencing Guidelines, where the
charges to which he was found guilty were not separate and distinct
incidents of criminality, but rather one episodic and continuing course of
criminal conduct?”); Defendant’s Post-Sentence Motion for Relief (arguing:
imposition of consecutive sentences in aggravated range was excessive and
unreasonable; sentence cruel and unusual due to age, lack of prior history
and conviction for non-violent offense; and weighing of factors favors a
lesser sentence). Appellant, therefore, waived his argument that the trial
court failed to consider mitigating factors or his rehabilitative needs.
We next must address whether his claim that the trial court abused its
discretion when it imposed consecutive, aggravated range sentences raises a
substantial question. “The determination of whether a particular issue raises
a substantial question is to be evaluated on a case-by-case basis.”
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Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A
substantial question exists where a defendant raises a “plausible argument
that the sentence violates a provision of the sentencing code or is contrary
to the fundamental norms of the sentencing process.” Commonwealth v.
Naranjo, 53 A.3d 66, 72 (Pa.Super.2012) (quoting Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa.Super.2010)).
A claim of excessiveness based on the imposition of consecutive
sentences does not raise a substantial question, unless the imposition of
consecutive sentences raises the “aggregate sentence to, what appears upon
its face to be, an excessive level in light of the criminal conduct at issue in
the case.” Commonwealth v. Mastromarino, 2 A.3d 581, 587
(Pa.Super.2010).4 Because the aggregate sentence imposed, 7 to 22 years’
imprisonment does not facially appear excessive in light of the criminal
conduct for which Appellant was convicted, Appellant’s claim that the trial
court abused its discretion by imposing consecutive sentences in the
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4
An excessiveness claim or challenge to consecutive sentences may raise a
substantial question when raised in conjunction with a claim that the court
failed to consider mitigating factors or rehabilitative needs. See
Commonwealth v. Caldwell, --- A.3d ---, 20115 WL 3444594, at *4
(Pa.Super. May 29, 2015) (challenge to consecutive sentences as unduly
excessive, together with claim court failed to consider rehabilitative needs
raised substantial question); Commonwealth v. Raven, 97 A.3d 1244,
1253 (Pa.Super.2014) (excessiveness claim, together with claim court failed
to consider mitigating factors, raised substantial question).
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aggravated range of the sentencing guidelines does not raise a substantial
question.
Further, even if we were to address the merits of the sentencing claim,
the claim fails. “Sentencing is a matter vested within the discretion of the
trial court and will not be disturbed absent a manifest abuse of discretion.”
Crump, 995 A.2d at 1282 (citing Commonwealth v. Johnson, 967 A.2d
1001 (Pa.Super.2009)). “An abuse of discretion requires the trial court to
have acted with manifest unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly erroneous.” Id. (citing
Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)).
“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d
1247 (Pa.Super.2006)). Further, “where the trial court is informed by a pre-
sentence report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519
Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)).
The trial court found:
As for the imposition of consecutive sentences, the
aggregate sentence is not excessive given the harm
inflicted by [Appellant] upon numerous individuals, families
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and the community as a whole. A lesser sentence would
have depreciated the seriousness of his devastating
crimes. [Appellant’s] suggestion that his crimes were not
separate episodes that piled more and more harm upon his
patients demonstrates his continued lack of remorse for his
actions and a self-serving characterization of the ample
trial evidence to the contrary.[] . . .
[The trial court], which had the benefit of a pre-sentence
investigation report, amply set forth on the record the
bases for the sentence imposed. (N.T. 6/5/ 14, pp. 27-32).
[The trial court] also stated that it imposed aggravated-
range sentences because there were multiple convictions
and multiple victims, the crimes involved drug trafficking,
defendant showed no remorse and the victims were in the
care of a medical office managed by [Appellant].
Therefore, the claim that [the trial court] erred in
fashioning its sentence is without merit.
Opinion, at 8-9. After a thorough review of the sentencing transcript, we
find the trial court did not abuse its discretion in sentencing Appellant to
consecutive, aggravated range sentences.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2015
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