Com. v. Ruffin, C ( 2014 )

J-S74010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLEO JOSEPH RUFFIN, JR.,
Appellant No. 2828 EDA 2013
Appeal from the Judgment of Sentence Entered September 13, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003893-2012
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 23, 2014
Appellant, Cleo Joseph Ruffin, Jr., appeals from the judgment of
sentence of 60-120 months’ incarceration, following his conviction for
robbery, terroristic threats, and simple assault. In this appeal, Appellant
challenges the sufficiency of the evidence pertaining to his conviction for
robbery. He also contends that the trial court abused its discretion when it
admitted a gun into evidence, admitted the testimony of a witness, and
when it sentenced Appellant outside the sentencing guidelines to the
statutory maximum penalty for his robbery conviction. Appellant also
complains that the trial court erred by revoking bail prior to the conclusion of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S74010-14
Appellant’s trial, and when it denied him bail pending the instant appeal.
After careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
On January 10, 2012 at approximately 11:05 a.m. the
Darby Borough Police were dispatched to 223 Main Street for an
assault in progress. While responding to this call the Police
received another dispatch directing them to 117 Main Street for
another assault with a firearm in progress. Upon arrival, Officer
Jeffrey Bevenour of the Darby Borough Police Department found
both victims, Douglas Arnodo and Joseph Pfaff out front of 121
Main Street.
Pfaff advised that he had been assaulted and that he had
seen the actor display a firearm in his waistband. Arnodo
advised that the same actor who had assaulted Pfaff attempted
to rob him several minutes later. They both described the
assailant as a taller black male with a bushy beard. Arnodo
advised that he was punched in the throat and the assailant
threatened that he was going to go get his gun from inside an
apartment. The assailant then ran inside of 121 Main Street and
went into the basement apartment shortly prior to the Police
arrival.
The Police attempted for several minutes to make contact
at the apartment the assailant was seen entering, however no
one answered the door. Due to the nature of the call, the Police
forced entry into the apartment. In the rear bedroom the Police
found a black male with a bushy beard, who was identified to be
[Appellant], Cleo Ruffin Jr. Also found in the residence was the
tenant, Roshan Jones, Jone[s’] 14[-]year[-]old son, and her 4[-
]year[-]old granddaughter.
Ruffin was brought out front where both Arnodo and Pfaff
positively identified Ruffin as the actor who had assaulted them.
Pfaff advised that he had been hired by the property manager of
117-123 Main Street to pick up trash on the property. While he
was picking up trash out back he observed Ruffin sitting in a
green Dodge Durango for approximately 10 minutes. Pfaff then
sat down to smoke a cigarette which is when Ruffin exited the
Durango and accosted him, accusing him of being a police
officer. Ruffin then punched Pfaff in the face once with a closed
-2-
J-S74010-14
fist at which point Pfaff held up a long stick he had been using to
pick up trash in self-defense. Ruffin then stated[,] “what are
you gonna do with that?” and lifted up his shirt to display a black
handgun which was tucked in his waistband. Pfaff then took off
running towards 2nd Street and called 911, leaving behind a
Wawa hoagie, a black jacket, and a box of trash bags. After
Ruffin was taken into custody Pfaffs black jacket and the box of
trash bags were found out front of 121 Main St. (the apartment
which Ruffin had run into).
Officer Bevenour then spoke with Arnado who is a
contractor hired by the building managers to work on the air
conditioning systems. Arnodo stated that he observed what he
believed to be an argument between Pfaff and Ruffin and
avoided becoming involved. Several minutes later he returned
to his work truck which had been parked in the common rear lot
shared by the addresses of 117-123 Main Street. Upon
returning to the truck he observed Ruffin inside the truck with a
bottle of beer, riffling through its contents. Arnodo also
observed two (2) 25 foot long rolls of 3/8" copper tubing, a
Makita Hammer Drill (valued at $300), a copper tube bender
(valued at $49.00), and a Milwaukee drill (valued at $250.00) on
the ground to the rear of his truck. Arnodo advised Officer
Bevenour that these items were not removed by himself or his
crew. Arnodo confronted Ruffin about being in his truck and
Ruffin responded by exiting the truck while yelling, and then
punching Arnodo several times in the throat and about his upper
body with closed fists. Arnodo fought back in self[-]defense.
Ruffin then ran away and told Arnodo that he was “going to get
his gun.” Ruffin then ran into 121 Main Street. Arnodo then
called 911. Arnodo advised Officer Bevenour that he had seen
Ruffin inside of Apartment A while doing work in the past, which
is why he believed Ruffin had gone in there.
Officer Bevenour then spoke with Roshan Jones. Jones
stated that Ruffin had come into the apartment, got undressed,
and laid down in bed. Jones then heard the loud and clear
knocks and announcements from Police and stated that Ruffin
told her not to answer the door. Jones stated that she did not
believe any firearms were in the apartment and gave police
written consent to search her residence. No firearm was
recovered during a subsequent search. Ruffin gave police verbal
consent to search his Durango. No firearm was found in the
Durango.
-3-
J-S74010-14
Trial Court Opinion (TCO), 12/19/2013, at 1-3.
As noted above, Appellant was arrested on January 10, 2012.
Regarding the incident with Arnodo, Appellant was charged with two counts
of robbery, 18 Pa.C.S. § 3701(a)(1)(ii) (“threatens another with or
intentionally puts him in fear of immediate serious bodily injury”) and 18
Pa.C.S. § 3701(a)(1)(iv) (“inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of immediate bodily injury”);
terroristic threats, 18 Pa.C.S. § 2706(a)(1); and simple assault, 18 Pa.C.S. §
2701(a)(1).1 Appellant was also charged with offenses related to the
incident with Pfaff, however, those charges were dismissed after Pfaff failed
to appear at Appellant’s preliminary hearing.
Appellant’s two-day jury trial began on June 25, 2013. The jury found
Appellant not guilty of the more serious robbery offense.2 The jury found
Appellant guilty of the remaining count of robbery,3 terroristic threats, and
simple assault. On September 13, 2013, the trial court sentenced Appellant
to 60-120 months’ incarceration for robbery. The court did not sentence
Appellant for terroristic threats or simple assault.
____________________________________________
1
There were numerous other charges, which are not relevant to the instant
appeal, that were ultimately withdrawn prior to trial.
2
Section 3701(a)(1)(ii), a first degree felony.
3
Section 3701(a)(1)(iv), a second degree felony.
-4-
J-S74010-14
On September 25, 2013, Appellant filed a pro se post-sentence
motion seeking reconsideration of his sentence. He then filed a counseled
notice of appeal on October 10, 2013, and a Pa.R.A.P. 1925(b) statement on
November 21, 2013. The trial court issued its Rule 1925(a) opinion on
December 19, 2013.
Appellant now presents the following questions for our review:
(1) Does the evidence in this case support the jury's finding that
[Appellant] was guilty of Robbery with infliction of bodily injury
when there is no evidence presented that the victim suffered
injuries and no evidence that the items were ever taken from the
victim with force?
(2) Did the trial court err by allowing testimony about a gun that
was never recovered and from which a previous gun charge[]
was dismissed at the Preliminary Hearing?
(3) Did the trial court err by allowing testimony of an additional
witness, Joseph Pfaff, under the Planning and Opportunity
exception to Prior Bad Acts?
(4) Did the court err in denying [Appellant]'s motion in limine to
exclude testimony of Joseph Pfaff when the original case against
Joseph Pfaff was dismissed before the Magisterial District
Justice?
(5) Did the trial court err by allowing jury instructions, over
counsel's objections, as to flight and concealment as
consciousness of guilt?
(6) Did the trial court err in denying the motion for directed
verdict and motion to quash of the Robbery Charges when there
was no evidence presented of any injury to the victim or removal
of items from the victim?
(7) Did the trial court err in deviating the sentence of [Appellant]
beyond the standard range and past the aggravated range and
by sentencing [Appellant] to the statutory minimum of sixty
months even though there were not aggravating factors
associated with a Robbery Conviction?
-5-
J-S74010-14
(8) Did the [t]rial court err in using the [Appellant]'s prior record
as an aggravating factor in sentencing [Appellant], since it was
originally contemplated into his Prior Record Score?
(9) Did the [t]rial [c]ourt err in using [Appellant]'s erroneous
Pre-Sentence Investigation as an aggravating factor in the
sentencing of [Appellant]?
(10) Did the [t]rial [c]ourt err in withdrawing and revoking bail
prior to the conclusion of the trial?
(11) Does prison overcrowding and [Appellant]'s likelihood of
prevailing on appeal — given the facts of this case are even
more compelling for a "not guilty" — favor suspending the
sentence and granting bail pending the appeal?
(12) Was the evidence presented sufficient to establish a
conviction for Robbery when no evidence was presented that the
victim was injured or that the items were stolen, and no[]
threats were made and when the evidence did not prove beyond
a reasonable doubt a conviction of Robbery and/or Simple
Assault and Terroristic Threats[?]
Appellant’s Brief at 9-10.
Appellant does not subdivide the argument section of his brief in
compliance with Pa.R.A.P. 2119(a), which dictates that “[t]he argument shall
be divided into as many parts as there are questions to be argued[.]”
Instead, he categorizes the questions presented for our review into four
argument sections. We overlook this breach of the Rules of Appellate
Procedure because it does not hinder our review of Appellant’s claims, as
several of the questions presented for our review overlap and/or involve
interrelated claims. However, we reorganize Appellant’s claims, in the same
manner as he presents them in the argument section of his brief, for ease of
disposition, as follows:
-6-
J-S74010-14
A. THE TRIAL COURT ERRED IN FINDING THE DEFENDANT
GUILTY OF ROBBERY AS SAID VERDICT LACKED SUFFICIENCY
OF THE EVIDENCE[.]
B. THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF A GUN
AND THE TESTIMONY OF JOSEPH PFAFF.
C. THE TRIAL COURT ERRED IN DEVIATING THE SENTENCE OF
THE DEFENDANT BEYOND THE STANDARD RANGE AND PAST
THE AGGRAVATED RANGE: WHEN THERE W[ERE] NO
AGGRAVATING FACTORS; WHEN THE COURT USED THE
DEFENDANT'S PRIOR RECORD AS AN AGGRAVATING FACTOR
WHEN THE PRIOR RECORD IS ORIGINALLY CONTEMPLATED
INTO ACCOUNT WITH THE PRIOR RECORD SCORE; AND WHEN
THE COURT IMPROPERLY RELIED UPON OTHER FACTORS IN THE
PRESENTENCE REPORT[.]
D. THE TRIAL COURT ERRED IN WITHDRAWING AND REVOKING
BAIL PRIOR TO THE CONCLUSION OF TRIAL AND IN NOT
GRANTING BAIL PENDING THE APPEAL[.]
Appellant’s Brief, at i-ii (parenthetical notes omitted).
Sufficiency of the Evidence Claims
Appellant presents challenges to the sufficiency of the evidence
supporting his convictions for robbery, terroristic threats, and simple assault
(questions 1, 6, and 12 above). Our standard of review of sufficiency claims
is well-settled:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
-7-
J-S74010-14
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
First, pertaining to his conviction for robbery, Appellant contends that
the Commonwealth did not present sufficient evidence that the victim,
Arnodo, suffered injuries. He also argues that there was no evidence that he
stole items from Arnodo by force; indeed, he maintains that “[a]t no time
did [Appellant] take any property from Mr. Arnodo’s person.” Appellant’s
Brief at 16.
Appellant was convicted of robbery pursuant to 18 Pa.C.S. §
3701(a)(1)(iv), which provides, in pertinent part, as follows:
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
…
(iv) inflicts bodily injury upon another or threatens another
with or intentionally puts him in fear of immediate bodily
injury;
18 Pa.C.S. § 3701(a)(1)(iv).
Appellant’s claim that his robbery conviction is infirm because the
victim, Arnodo, did not suffer any injuries, is without merit on its face. The
express terms of Section 3701(a)(1)(iv) do not require the infliction of injury
to sustain a conviction under that provision. It is enough that Appellant
“threatens another with or intentionally puts him in fear of immediate bodily
injury[.]” Id. Nevertheless, Appellant did inflict bodily injury upon the
-8-
J-S74010-14
victim. Appellant “punch[ed] [Arnodo] several times in the throat and about
his upper body with closed fists.” TCO, at 7. He also put the victim in fear
of immediate bodily injury with these actions, as well as when he threatened
to get his gun after Arnodo began defending himself. Thus, this claim is
meritless.
Appellant also contends there was not sufficient evidence of a robbery
because he was not acting “in the course of committing a theft” when the
confrontation with Arnodo occurred. 18 Pa.C.S. § 3701(a)(1). He argues,
“[a]t most this was an attempted theft that ended when [Appellant] was
confronted by Mr. Arnodo.” Appellant’s Brief, at 19. However, the record
belies this claim, and Appellant misconstrues the applicable law.
As a matter of law, the Commonwealth did not have to demonstrate
that the predicate offense of theft was completed. The Commonwealth only
needed to prove that a theft was in progress to secure a conviction for
robbery. See Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa.
Super. 2007) (holding that a “conviction for robbery does not require proof
of a completed theft”). Arnodo testified that when he approached his own
vehicle, Appellant was rummaging through it and several items that had
been in the vehicle were strewn about on the ground. The jury could have
inferred from this evidence that Appellant was committing a theft when
Arnodo confronted him. Accordingly, this claim is also without merit.
Appellant does not present any argument regarding his claims that
there was insufficient evidence of simple assault and terroristic threats.
-9-
J-S74010-14
“The Rules of Appellate Procedure state unequivocally that
each question an appellant raises is to be supported by
discussion and analysis of pertinent authority.” Estate of Haiko
v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P.
2119(b). “Appellate arguments which fail to adhere to these
rules may be considered waived, and arguments which are not
appropriately developed are waived. Arguments not
appropriately developed include those where the party has failed
to cite any authority in support of a contention.” Lackner v.
Glosser, 892 A.2d 21, 29–30 (Pa. Super. 2006) (citations
omitted). This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Irwin Union National
Bank and Trust Company v. Famous and Famous and ATL
Ventures, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007)).
Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014).
Accordingly, these remaining sufficiency claims have been waived as they
are inadequately developed.
Admission of Pfaff’s Testimony
Next, Appellant claims the trial court abused its discretion when it
permitted Pfaff to testify. Appellant complains that Pfaff’s testimony
consisted almost entirely of references to prior bad acts, including testimony
that Appellant showed Pfaff a firearm during the course of their interaction
before the incident with Arnodo. Appellant raised this claim in a motion in
limine filed prior to trial.4
____________________________________________
4
Although Appellant’s April 10, 2013 motion in limine appears in the
certified record, there is no transcript in the certified record of the hearing
conducted on June 24, 2013, addressing that motion. Nevertheless, the
record before us is sufficient to address this matter.
- 10 -
J-S74010-14
The admission of evidence is solely within the province of the
trial court, and a decision thereto will not be disturbed absent a
showing of an abuse of discretion. “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.”
Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal
citations omitted).
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419
(2008).
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).
The trial court concluded that “the Pfaff assault was part of a sequence
of events which formed the history of the case. Therefore, the evidence was
properly admitted as it tended to prove [Appellant’s] identity, the manner in
which the crimes were committed, the weapon used or threatened, the
motive, and the location.” TCO, at 10-11. Nevertheless, Appellant contends
that
the testimony of Mr. Pfaf[f] regarding the alleged assault and
robbery and testimony [about] the gun should have been
excluded due to the fact that it was offered under the guise that
it is being offered to serve some purpose other than to
demonstrate the defendant’s propensity to commit the crime
charged. Specifically, it was offered only for the propensity for
- 11 -
J-S74010-14
committing criminal acts or [Appellant’s] bad character.
Furthermore, the ruling to allow the admission of Mr. Pfaf[f]’s
testimony reflects prejudice against [Appellant], especially in
light of the fact that no gun was ever recovered, and that
charges as to the gun, as well as [Appellant]’s charges of
robbery as to Mr. Pfaf[f] were both dismissed at the preliminary
hearing stage.
Appellant’s Brief at 22-23 (internal citation omitted). Appellant also cites to
Commonwealth v. Spruill, 391 A.2d 1048 (Pa. 1978), to support his
claim.
Appellant’s reliance on Spruill is inapposite. In that case, the
appellant was on trial for murder. The prosecution called a witness who,
when asked if he ever did anything for the appellant, stated, “Yes.” Spruill,
391 A.2d at 1049. The prosecutor then asked, “For example what?”; to
which the witness responded, “Buried a couple bodies for him.” Id. The
appellant objected and asked for a mistrial, which was denied by the trial
court. On appeal, our Supreme Court reversed, holding that the witness’s
testimony constituted impermissible and highly prejudicial evidence of prior
bad acts. See id. at 1049-50. The Commonwealth had argued that “the
quoted testimony was merely a premature reference to the burial of the
victim and as such did not constitute a reference to crimes other than the
one for which appellant was then being tried.” Id. at 1050. Our Supreme
Court dismissed that argument:
This position would be well taken had the witness merely stated
that he had buried [o]ne body, but the reference was to a
“[c]ouple of bodies.” It is difficult to conceive of the jury not
treating this testimony as a reference to crimes other than the
one for which appellant was being tried. Timely objection was
- 12 -
J-S74010-14
made by counsel for appellant. The misstatement, if that is what
it was could have been corrected by an instruction by the court,
or by additional questioning by the Commonwealth's attorney to
establish that the witness had made a misstatement. No
instruction was given by the court, no correction was attempted
and the jury was permitted to consider evidence of possible
murders other than the one for which appellant was being tried.
We therefore cannot accept the trial court's view that the jury
construed this statement as a premature reference to the burial
of the body of the victim in this case.
[The Commonwealth] argues that there are exceptions to
the rule that reference to prior criminal activity of the accused
constitutes error. With this statement we, of course, agree.
However, we cannot accept appellee's implied premise that the
rule is so porous that it is virtually meaningless. The exceptions
that have been recognized are instances where there is a
legitimate basis for the introduction of the evidence other than a
mere attempt to establish the accused's predisposition to commit
the crime charged.
The Commonwealth argues that this evidence was
admissible to establish the relationship between the witness and
appellant. Assuming arguendo, that under some circumstances
evidence of prior unrelated criminal activity may be permissible
to show a relationship between the witness and the defendant,
no such circumstances have been established in this record. The
bald statement that the witness had buried “a couple of bodies”
for the appellant without more, sheds little, if any, light upon the
nature of the acquaintance that existed between the two.
Evidence of prior criminal activity (particularly of the type
of conduct suggested by this statement) is probably only
equalled by a confession in its prejudicial impact upon a jury.
Thus, fairness dictates that courts should be ever vigilant to
prevent the introduction of this type of evidence under the guise
that it is being offered to serve some purpose other than to
demonstrate the defendant's propensity to commit the charged
crime.
Id. at 1050-51 (footnotes omitted).
Here, there is no dispute that Pfaff’s testimony constituted evidence of
prior bad acts. However, unlike what occurred in Spruill, the record in the
- 13 -
J-S74010-14
instant case adequately supports the exceptions invoked to permit the
admission of that prior bad acts evidence. Indeed, the admission of Pfaff’s
testimony was justified under several exceptions. By placing Appellant at
the scene of the crime, Pfaff’s testimony helped to establish Appellant’s
identity and his opportunity to commit the crime against Arnodo. Pfaff’s
testimony also tended to discount the possibility of mistake or accident with
regard to Appellant’s intentions in Arnodo’s vehicle. Additionally, Pfaff’s
testimony regarding Appellant’s possession of a gun corroborated the threat
issued to Arnodo. Unlike what had occurred in Spruill, the exceptions
invoked to overcome the ban on prior bad acts evidence in this case were
not illusory; they had a legitimate basis for which we can readily find
support in the record. Thus, Appellant’s claim that these exceptions were
improperly invoked is meritless.
Alternatively, Appellant complains that even if the prior bad acts
exceptions apply in this case, the prejudice that ensued outweighed the
probative value of Pfaff’s testimony. We disagree. The trial court issued the
following instruction to the jury regarding Pfaff’s testimony:
You have heard evidence tending to prove that [Appellant] was
guilty of improper conduct for which he is not on trial. I am
speaking of the testimony and the statement of Joseph Pfaff.
This evidence is before you for a limited purpose, that is, for the
purpose of tending to show the identity, opportunity, absence of
mistake, and intent of [Appellant] with respect to the crimes
alleged to have been committed against Douglas Arnodo. This
evidence must not be considered by you in any way other than
for the purpose I just stated. You must not regard this evidence
as showing that [Appellant] is a person of bad character or
- 14 -
J-S74010-14
criminal tendencies from which you might be inclined to infer
guilt.
N.T., 6/26/13, at 152.
There is nothing in the record indicating that Appellant objected to the
above instruction, and Appellant does not discuss its impact on the
prejudicial nature of Pfaff’s testimony. We also note that Pfaff’s testimony
was highly probative of several important issues in this case, as Appellant’s
identity as the perpetrator was at issue. Given that the above instruction
mitigated any resulting undue prejudice by directing the jury to only
consider the prior bad acts evidence for the limited purposes for which it was
offered, we conclude that the probative value of Pfaff’s testimony was not
outweighed by its prejudicial effect.
Discretionary Aspects of Sentencing
Next, Appellant challenges the discretionary aspects of his sentence.
He argues that in imposing an aggravated range sentence, the trial court
failed to consider the impact of the crime on the victim and relied on
impermissible factors contained in the pre-sentence report. Appellant also
argues that consideration of his prior offenses was improper because those
crimes were already accounted for in the calculation of Appellant’s prior
record score.
Challenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
- 15 -
J-S74010-14
[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 generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
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.” Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Appellant filed a timely notice of appeal, and preserved his
discretionary aspects of sentencing claims by means of argument during his
- 16 -
J-S74010-14
sentencing hearing.5 However, Appellant’s brief does not contain a Rule
2119(f) statement, nor does he offer any argument on the threshold
question of whether his sentencing claims present a substantial question for
our review. However, the Commonwealth has not objected to these
deficiencies in Appellant’s brief, and Appellant’s claims clearly present a
substantial question for our review because they concern whether the trial
court sentenced him inappropriately under the sentencing code. See 42
Pa.C.S. § 9721(b) (“[T]he court shall follow the general principle that the
sentence imposed should call for confinement that is 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.”) (emphasis added); Commonwealth
v. Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (en banc) (“[I]f a
sentencing court considers improper factors in imposing sentence upon a
defendant, the court thereby abuses its discretion[.]”) (quoting
Commonwealth v. Krum, 533 A.2d 134, 135 (Pa. Super. 1987) (en
banc)); Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003)
(“It is impermissible for a court to consider factors already included within
____________________________________________
5
Appellant’s pro se post-sentence motion did not preserve these matters,
because he was represented by counsel when he filed the motion, and he is
not entitled to hybrid representation. See Commonwealth v. Padilla, 80
A.3d 1238, 1259 (Pa. 2013) (holding that the “[a]ppellant had no right to
hybrid representation and thus no right to demand that the trial court
address his pro se motions on the merits”).
- 17 -
J-S74010-14
the sentencing guidelines as the sole reason for increasing or decreasing a
sentence to the aggravated or mitigated range.”). Thus, we will address the
merits of Appellant’s discretionary aspects of sentencing claims.
First, Appellant complains that the trial court failed to consider the
impact of the crime on the victim. However, the trial court specifically states
that it “considered the impact to the victim” at sentencing. TCO, at 15.
Appellant fails to explain, by reference to the record or otherwise, how the
court’s consideration of the impact on the victim was illusory or inadequate.
Accordingly, this claim is without merit.
Second, Appellant claims the court improperly considered his assault
of Pfaff, which occurred immediately before this crime. Appellant argues
that because the charges related to Pfaff were dismissed, that incident
should not have played a part in the trial court’s consideration of his
sentence. However, “[e]ven if a sentencing court relies on a factor that
should have not been considered, there is no abuse of discretion when the
sentencing court has significant other support for its departure from the
sentencing guidelines.” Commonwealth v. Sheller, 961 A.2d 187, 192
(Pa. Super. 2008). Here, Appellant concedes that in crafting his sentence,
the trial court considered his criminal history, his lack of remorse and failure
to take responsibility for his actions, the fact that he was arrested three
times while he was released on bail in this case, and his rehabilitative needs.
Appellant does not develop any argument regarding why these factors fail to
constitute “significant other support” for the trial court’s departure from the
- 18 -
J-S74010-14
guidelines in this case. Id. Accordingly, we conclude that this claim lacks
merit.6
Third, Appellant argues that the trial court abused its discretion when
it considered Appellant’s prior record as an aggravating sentencing factor
when that factor had already been used to calculate his prior record score.
As we noted above, even if a court considers an improper factor, “there is no
abuse of discretion when the sentencing court has significant other support
for its departure from the sentencing guidelines.” Id. Here, the trial court
provided many reasons for departing from the guidelines while crafting
Appellant’s sentence and, again, Appellant fails to develop any argument
regarding why these factors fail to constitute “significant other support” for
the trial court’s departure from the guidelines in this case, even if its
consideration of his prior record was improper. Id. Nevertheless, Appellant
also fails to explain how the trial court can accurately and adequately
consider statutory factors such as the protection of the public and
Appellant’s rehabilitative needs without at least some consideration of his
____________________________________________
6
Nevertheless, Appellant has not cited any legal authority suggesting that it
is impermissible for a sentencing court to consider, when crafting a
sentence, conduct which provided the basis for charges that were ultimately
dismissed. Significantly, Pfaff stated that he was afraid to testify at
Appellant’s preliminary hearing because a gun was involved in that assault.
N.T., 6/26/13, at 59. Charges relating to the assault on Pfaff were
dismissed due to Pfaff’s failure to appear at Appellant’s preliminary hearing.
Thus, this is not a situation where the trial court considered alleged conduct
for which Appellant was acquitted.
- 19 -
J-S74010-14
prior record. See 42 Pa.C.S. § 9721(b) (“[T]he court shall follow the
general principle that the sentence imposed should call for confinement that
is 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.”) (emphasis added).
Clearly, recidivist behavior reflects on both of these factors. Accordingly, we
conclude that this claim lacks merit.
Bail
Finally, Appellant contends that the trial court erred when it revoked
his bail prior to the conclusion of his trial. He also complains that the trial
court erred when it denied him bail pending resolution of the instant appeal.
These claims, together, comprise only a single page of Appellant’s brief.
Appellant’s Brief, at 27. Therein, Appellant does not discuss the reasons
given by the trial court regarding its decisions to revoke bail before
Appellant’s trial and to deny bail pending appeal.7 Furthermore, although he
briefly references the applicable rules, Appellant does not cite any case law
in support of his bald assertion that the trial court abused its discretion in
____________________________________________
7
The trial court indicates that it revoked Appellant’s bail prior to trial, and
denied him bail pending appeal, because he presented a threat to the
community. TCO, at 19. As noted by the trial court when considering
Appellant’s sentence, Appellant was arrested three times while out on bail
prior to his trial.
- 20 -
J-S74010-14
making these bail determinations. Accordingly, we conclude that Appellant
has waived these claims. See Coulter, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
- 21 -