Com. v. Weaver, L. ( 2018 )

J-S32044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LOVELLE KINON WEAVER :
:
Appellant : No. 1400 MDA 2017
Appeal from the Judgment of Sentence April 17, 2017
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0000741-2016
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED OCTOBER 29, 2018
Appellant, Lovelle Kinon Weaver, appeals from the judgment of
sentence following his jury conviction of aggravated assault, firearms not to
be carried without a license, recklessly endangering another person, and
discharge of firearm into an occupied structure.1 Following a bench trial,
Appellant was also convicted of person not to possess firearms.2 We affirm.
We take the underlying facts and procedural history in this matter from
our review of the certified record.
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118 Pa.C.S.A. § 2702(a)(4); 18 Pa.C.S.A. § 6106(a)(1); 18 Pa.C.S.A. § 2705
and 18 Pa.C.S.A. § 2707.1, respectively.
2 18 Pa.C.S.A. § 6105(a)(1).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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David Stoltzfus testified that on October 7, 2015, there was a funeral at
a church across from the intersection of Strawberry and Chester Streets. (See
N.T. Hearing, 12/6/16, at 100).3 His truck was parked on the corner of West
Strawberry and Chester Street. (Id. at 98). He observed a man and a woman
arguing. (Id. at 102). He described the man as wearing a “green hood
sweater or greenish colors on it.” (Id. at 103). The male was later identified
as Dwaine London. (Id. at 171). Stoltzfus testified he heard shots and ran
back to his truck. (Id. at 104). He did not see who was firing the shots. (Id.
at 107).
Walter Gardner testified that he was sitting in his living room when he
“heard a lot of noise down on Strawberry and Chester Street[.]” (Id. at 114).
He saw “a guy running out the crowd running down the street. But again, I
see another guy running behind this guy shooting.” (Id. at 115). “He was
dressed in white.” (Id. at 118). He testified he was a “Black guy.” (See id.).
“He was (sic) slim guy, little slim fellow.” (See id.).
The Commonwealth called Reverend Wayne Scott. (Id. at 146). He
was officiating at the funeral for Jared Weaver. (Id. at 147). He testified
there was a crowd outside of the church and two people were fighting. (Id.
at 149). He testified “[s]omebody came running out of the crowd shooting.”
(See id. at 151). He saw who was firing the shots. (Id. at 152). The shooter
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3 The funeral was for Jared Weaver, Appellant’s brother. (Id. at 147, 183).
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was a man who he thought was one of Jared Weaver’s brothers. (See id.).
He was asked if he actually saw him with a gun and the Reverend responded,
“Yeah.” (See id.). He was asked to describe “[t]he person, the family
member, the brother that was doing the shooting[.]” (Id. at 154). He
testified that he was tall and slim. (See id.). He met him when he went to
the family’s house prior to the funeral because he was the pastor who was
going to perform the eulogy and that is the protocol. (See id.). Reverend
Scott testified that the person who was doing the shooting was at the house.
(See id.).
Captain Michael Winters was involved in the investigation of the October
7, 2015 incident. (Id. at 166). He testified that the person wearing a green
jacket was identified as Dwaine London. (Id. at 171). He was shown a “still
image” which he testified was “captured from a Lancaster Safety Coalition
[“LSC”] camera.” (Id. at 177). Captain Winters described it as “a still image
of a black male wearing a white shirt outside the church at Bethel AME.” (See
id.). He testified further as follows:
The Commonwealth: My understanding, you, the police
received information that there was an individual who had
regular contact with a person you suspected to be the
shooter, and you developed the name of Lovelle Weaver; is
that true?
Captain Winters: Yes.
Q: All right. And this person who had regular contact, the
name is Laura Krautler . . . .
A: Yes.
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Q: . . . Did you send those-those specific still photographs
to Ms. Krautler?
A: Yes, I did.
....
Q: [S]he confirmed that the subject, tall, thin, African-
American man wearing all white looks like Lovelle Weaver.
Is that what she said to you?
A: Yes, she did.
Q: Okay. And on October 21, 2015, you then informed
Detective [Eric] McCready of your interactions and
discussions with Laura Krautler, correct?
A: Yes, I did.
(Id. at 188-89).
Laura Krautler testified, inter alia, as follows:
The Commonwealth: . . . My understanding is that you
know someone named Lovelle Weaver?
Laura Krautler: I do.
Q: And that you had some repeated contact with Lovelle
Weaver in the year 2014?
A: That’s correct.
Q: Is it correct that you had two specific face-to-face
meetings with Lovelle Weaver sometime during that year?
A: Yes.
....
Q: Can you give us a physical description of Lovelle Weaver?
A: He is a tall, thin, black man.
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Q: In October 2015, were you contacted by the Lancaster
City Bureau of Police regarding a shots fired incident that
occurred in Lancaster County in October of 2015?
A: Yes.
Q: My understanding is that Lancaster City Police sent you
two digital images . . . through the computer; is that true?
A: Correct.
Q: And that you identified a black male wearing all white in
these images as being Lovelle Weaver?
A: Correct.
Q: Is the person you know as Lovelle Weaver, is that person
in the courtroom right now?
A: He is.
Q: Can you please point him out for me?
A: [Indicating.]
(Id. at 196-97). The witness identified Appellant. (Id. at 197).
Detective McCrady testified that he is employed with the Lancaster City
Bureau of Police. (Id. at 200). He was involved with the investigation of the
October 7, 2015 incident. (See id.) His job was to look at the video “footage
from the Coalition.” (Id. at 201-02). He testified that he recognized Lovey
White from the video and from a comment he posted on Jared Weaver’s
Facebook page. (Id. at 207-08). He stated the photographs of Lovey White
were identical to another person in the LSC footage. (Id. at 208). When
asked which person, he stated “[t]he-black male, tall, with the braids pulled
back, wearing all white, with an emblem on his T-shirt.” (See id.).
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The jury saw the videos and the Facebook photograph of Lovey White.
(Id. at 215). Detective McCrady stated “[t]he person in the photograph
appears to be Lovelle Weaver.” (Id. at 217). He testified that Lovelle
Weaver’s father’s name was White. (Id. at 223). The Detective noted that
Lovell Weaver and Jared Weaver have the same mother and different fathers.
(See id. at 224).
Following a jury trial, Appellant was convicted of Count 1 and Counts 3
through 9.4 On January 23, 2017, following a bench trial, Appellant was
convicted of count 2. Appellant’s sentence was deferred to allow for a
presentence investigation (“PSI”) report. On April 17, 2017, a sentencing
hearing was held. Appellant was sentenced to eighteen to forty-four years’
imprisonment. Appellant filed a timely post-sentence motion, which was
denied on August 7, 2017. The instant, timely appeal followed.5
On appeal, Appellant raises the following questions for our review.
I. Did the trial court err by seating a juror with a personal
relationship with a prosecution witness, after the juror
repeatedly said he “would not question” the witness, and
would “take whatever [the witness] says as absolute truth”?
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4Appellant was charged with five counts of recklessly endangering another
person.
5 In compliance with the trial court’s order, Appellant filed a statement of
errors complained of on appeal on September 21, 2017. See Pa.R.A.P.
1925(b). On January 9, 2018, the trial court issued an opinion. See Pa.R.A.P.
1925(a). The trial court opined that Appellant’s 1925(b) statement was
vague, however, the court declined to conclude that the issues were not
properly preserved. (Trial Court Opinion, 1/9/18, at 4).
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II. Did the trial court’s erroneous admission of inadmissible
evidence under the guise of explaining the police “course of
conduct” warrant a new trial?
III. Was the verdict premised on legally insufficient evidence
where no witnesses directly identified [Appellant] as the
man who fired on the street?
IV. Was the trial court’s aggregate sentence of 18 to 44
years in prison improper?
A. Did the trial court’s imposition of nine consecutive
terms of imprisonment, several of which were in the
aggravated range, present a substantial question for this
Court’s review?
B. Was the court’s sentence unreasonable?
V. Does the statutory mechanism for reviewing the
discretionary aspects of sentencing violate the Pennsylvania
constitutional right to appeal?
(Appellant’s Brief at 11).
Appellant first avers “the trial court err[ed] by seating a juror with a
personal relationship with a prosecution witness, after the juror repeatedly
said he ‘would not question’ the witness, and would ‘take whatever [the
witness] says as absolute truth[.’]” (Id. at 31). Appellant argues that the
juror should have been stricken because he had a genuine, personal
relationship with the witness, viz., the Reverend Wayne Scott. (See id. at
34). Because of the close relationship, Appellant contends that the juror was
presumptively biased. (See id.).
Our standard of review of a court’s decision not to strike a potential juror
is well-settled:
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The test for determining whether a prospective juror should
be disqualified is whether he is willing and able to eliminate
the influence of any scruples and render a verdict according
to the evidence, and this is to be determined on the basis of
answers to questions and demeanor.... A challenge for
cause should be granted when the prospective juror has
such a close relationship, familial, financial, or situational,
with the parties, counsel, victims, or witnesses that the
court will presume a likelihood of prejudice or demonstrates
a likelihood of prejudice by his or her conduct and answers
to questions. Our standard of review of a denial of a
challenge for cause differs, depending upon which of these
two situations is presented. In the first situation, in which a
juror has a close relationship with a participant in the case,
the determination is practically one of law and as such is
subject to ordinary review. In the second situation, when a
juror demonstrates a likelihood of prejudice by conduct or
answers to questions, much depends upon the answers and
demeanor of the potential juror as observed by the trial
judge and therefore reversal is appropriate only in the case
of palpable error. When presented with a situation in which
a juror has a close relationship with participants in the
litigation, we presume prejudice for the purpose of
[en]suring fairness.
McHugh v. Proctor & Gamble Paper Prod. Co., 776 A.2d 266, 270 (Pa.
Super. 2001) (footnote, citations, internal quotation marks, and original
modifications omitted). “Generally, the trial court is in the best position to
assess the credibility of a juror and determine if that juror is able to render a
fair and impartial verdict.” Id. at 273.
In the case sub judice, the following exchange took place between the
court and the juror:
The Court: And I understand that as a result of the opening
statements, you believe that you are acquainted with one of
the witnesses?
A Juror: Yes.
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The Court: And that would be whom?
A Juror: Reverend Wayne Scott.
....
I went to Lancaster Bible College with him. He will not
recognize me . . . .
The Court: How well acquainted are you with him?
A Juror: I know him by sight. . . . [H]e probably does not
know me.
The Court: Okay.
A Juror: I do know that I can say-I’m sorry, very nervous.
But I do know that anything he would say I will take as
absolute truth, so I-
The Court: So you would not be able to employ the same
standard of credibility to him as you would employ in
evaluating another witness’s testimony?
A Juror: If he says it, it’s the gospel. I will take whatever
he says as absolute truth.
The Court: Do you realize that there is a difference in
assessing someone’s credibility in considering their
testimony in context and considering them to be untruthful?
A Juror: In that-I’m sorry.
The Court: Well, that a person can give an account of
something that happens, and in the context of an entire
situation, while this might be a completely truthful person
who does not lie, and yet, would you be able to listen and
say, well, I can see that from his vantage point or given his
perspective, he might not have seen everything, heard
everything, realized everything. Would you be able to
evaluate his testimony and pick it apart like that?
A Juror: That I could, yes. I think that, yes, I could.
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.....
The Court: Does it make a difference to you in assessing
the evidence that Reverent Scott happens to be testifying
for the Commonwealth instead of for the defense? Do you
think it makes a difference?
A Juror: No. If I may just say, what prompted my whole
thought and my whole thing is, oh, I do know him, is that I
believe that I-I believe that I heard in the opening statement
that, you know, he was-he was talking with the police, that
he identified- he says, yes, I know that this person is this
person, that type of- that type of testimony I would not
question. I would not question that he’s telling the truth
about that.
The Court: As far as he knew it?
A Juror: Right, right.
The Court: If someone asked a question that went to the
foundation of his belief, however, would you be able to
listen-regard his testimony as, well, I can understand why
he believed that, however, another witness’s testimony
makes me realize that perhaps his belief was based on
erroneous understanding, that’s the essence of making a
credibility determination.
A Juror: Yes, I can make that in good conscious (sic), yes.
The Court: Because that’s not lying.
A Juror: Yeah.
The Court: You know, he believes something and believes it
to be true, but it can be based on an erroneous or mistaken
set of perception or beliefs.
A Juror: Right, yes.
(See N.T. Hearing, 12/5/16, at 81-83, 89-90). The court also heard the
following testimony:
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A Juror: I believe that it’s my assumption that every witness
that’s presented here will be telling the truth of what they
saw.
[Commonwealth]: Okay. Not just Reverend Scott.
A Juror: All witnesses would be doing that. That’s my
assumption.
[Commonwealth]: What I’m trying to get to is, I don’t want
to tell you what’s going to happen in the case, but truth-
there’s a difference between objective truth and just
testifying to what you think you saw. Some people can be
mistaken. Some people’s perception may be limited. Some
people can see better than others. Some people closer, you
can see more, as opposed to being farther away. So do you
understand that-the difference between telling the jury what
you saw to the best of your recollection versus objective
truth versus lying? Do you understand that difference?
A Juror: Yes.
(Id. at 85).
The trial court concluded:
I am less concerned about the fact that they may have
gone to Lancaster Bible College together some years back
because I have to agree, the mere fact that you ever met
someone, you can say you know them, but that’s different
than a close association that would give rise to a concern of
partiality bias, prejudice, the inability to serve as a fair and
impartial juror.
To me, the matter goes more to evaluating this juror’s
understanding of the credibility determination of all of the
witnesses. Had he said, I, or my in-laws even, have regular
social interaction with this individual, I would be concerned
about the acquaintanceship, but that was far from the case.
And I was listening closely to the way in which each of us
tried to ask him about his understanding of the credibility
standard and how it applied, . . . and I am satisfied that
although he said, I would believe anything Reverend Scott
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said, that he made that statement and still is able to apply
the credibility determination because all of the witnesses
take an oath. And so presumably, every juror is going to
believe that each witness is going to abide by that oath and
be truthful to the best of their knowledge and belief. And to
me, this juror has indicated that he can evaluate the basis
of Reverend Scott’s knowledge and belief and assess his
credibility as he would assess the credibility of the other
witnesses.
(Id. at 93-94).
The trial court opined “[u]pon reviewing the record, and recollecting
upon the reasoning behind its decision at trial, the court is satisfied that, within
its sound discretion, its decision not to remove the juror from the panel was
the correct one, and there exists no abuse of discretion with respect to
[Appellant’s] first issue.” (See Trial Ct. Op., at 9).
Instantly, on independent review, we conclude that Appellant has failed
to show that the juror had a direct, close, familial relationship with the
Reverend. Accordingly, we review whether the trial court’s assessment of the
juror’s answers and demeanor was palpable error. See McHugh, 776 A.2d
at 270. The trial court is in the best position to assess the credibility of a juror
and determine if the juror can render a fair and impartial verdict. Id. at 273.
As evidenced by both the Commonwealth’s and the trial court’s questions and
the juror’s answers, the trial court had sufficient reason to conclude the juror
would properly consider all testimony in context with the evidence presented.
Appellant’s first question does not merit relief.
Second, Appellant contends “the trial court’s erroneous admission of
inadmissible evidence under the guise of explaining the police ‘course of
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conduct’ warrant[s] a new trial.” (Appellant’s Brief at 38). Appellant argues
“the court erred in allowing Rev. Scott to testify as to hearsay statements
made by non-testifying witnesses” as to the identity of the alleged shooter.
(Id. at 43). Appellant avers “the trial court compounded this improper
testimony by allowing Cpt. Winters to testimony (sic) extensively about
hearsay statements made by Rev. Scott, Joe Hamilton, and Laura Krautler[.]”6
(Id. at 44). Lastly, the court erroneously permitted Detective McCrady to
provide a description of the shooter based upon his viewing of the video. (Id.
at 45). We disagree.
When reviewing a challenge to the admissibility of evidence,
we note that [t]he admissibility of evidence rests within the
sound discretion of the trial court, and such a decision will
be reversed only upon a showing that the trial court abused
its discretion. An abuse of discretion is not merely an error
of judgment, but is rather the overriding or misapplication
of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. Hearsay is
defined as a statement, other than one made by the
declarant while testifying at trial or hearing, offered in
evidence to prove the truth of the matter asserted. Hearsay
testimony is per se inadmissible in this Commonwealth,
except as provided in the Pennsylvania Rules of Evidence[,]
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6 The trial court opined “[w]hile the statements made by Reverend Scott and
Mr. Hamilton were objected to by [Appellant] at trial, and thus properly
preserved for appeal, no objections were made to the testimony proposed by
the Commonwealth at sidebar or the testimony subsequently given by Captain
Winters with respect to Ms. Krautler’s identification of [Appellant]. Therefore,
any issues pertaining to Captain Winters’ testimony about Ms. Krautler’s
identification of [Appellant] was (sic) not properly preserved . . . .” (Trial Ct.
Op., at 10-11) (footnote omitted). (See N.T. Hearing, 12/6/26, at 161, 188-
89).
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by other rules prescribed by the Pennsylvania Supreme
Court, or by statute.
Commonwealth v. Gray, 867 A.2d 560, 569–70 (Pa. Super. 2005), appeal
denied, 879 A.2d 781 (Pa. 2005) (citations and quotation marks omitted).
It is, of course, well established that certain out-of-court
statements offered to explain a course of police conduct are
admissible. Such statements do not constitute hearsay since
they are not offered for the truth of the matters asserted;
rather, they are offered merely to show the information
upon which police acted. This Court has repeatedly upheld
the introduction of out-of-court statements for the purpose
of showing that based on information contained in the
statements, the police followed a certain course of conduct
that led to the defendant's arrest.
Commonwealth v. Palsa, 555 A.2d 808, 810 (Pa. 1989) (citations and
quotation marks omitted).
At trial, the court stated as follows:
[W]hat’s being offered is not being offered for the truth of
the matter asserted. It is being offered to show courses of
conduct in a police investigation.
....
[T]hat is why there’s an exception to show course of
conduct, [because] you cannot rely on the absence of
evidence when you are proceeding with a police
investigation. You go based on what is told to you by
individuals. Whether it’s true or not, you don’t know or what
they tell is what you do as an investigator to take the next
step. So I haven’t heard anything new that tells me that
this is beyond evidence offered to show course of conduct.
. . . For the police officers’ investigation, so that means
everyone [Captain Winters] spoke to in the chain of his
investigation, as long as it’s not be offered for the truth of
the matter asserted, is legitimate, admissible evidence to
demonstrate why he took the steps he took.
(See N.T. Hearing, 12/6/16, at 163-64).
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The trial court opined: “[T]he court anticipated an objection by
[Appellant] to the testimony at issue, as its nature had been discussed by
counsel prior to trial. Having been prepared for the Commonwealth’s offer of
proof and [Appellant’s] objections, the court could confidently conclude that
what was being offered was not being offered for the truth of the matter
asserted, as its purpose was to show a course of conduct in a police
investigation.” (See Trial Ct. Op., at 11).
We conclude the trial court did not abuse its discretion in finding Captain
Winters’ testimony admissible. See Palsa, 555 A.2d at 810; Gray, 867 A.2d
at 569–70. We agree with the trial court’s assessment of Captain Winters’
testimony, as it clearly established how the police proceeded with its
investigation. In regard to Reverend Scott’s testimony, it does not appear
that Appellant identified his testimony, as allegedly inadmissible hearsay, as
a specific point of error in Appellant’s Rule 1925(b) statement. Arguably, we
could find the issue waived. Even on the merits, however, it is evident that
Reverend Scott’s statements led police to eventually contact Laura Krautler,
which furthered their investigation. We find no error in the trial court’s
admissibility determinations.
Additionally, Appellant contends the trial court erred in permitting
Detective McCrady to testify about his review of the LCSC video from the
scene. (Appellant’s Brief at 45). The video captured the shooting in question.
(See N.T. Hearing, 12/5/16, at 69-70). In the instant case, the video was
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admitted into evidence. The trial court permitted the Detective to testify as
to his course of conduct based upon what he observed in the video. (See Trial
Ct. Op., at 13). The trial court held that the Detective “could testify as to
what he observed and what actions, if any, he took in furtherance of those
observations.” (See id.).
In Commonwealth v. Lewis, 623 A.2d 355, 356-59 (Pa. Super. 1993),
this Court reversed a conviction where a police officer testified as to the
contents of a surveillance video tape but a copy of the tape was not introduced
into evidence. Instantly, because the video tape was introduced into
evidence, we discern no abuse of discretion. See id.Third, Appellant contends “the verdict was premised on legally
insufficient evidence where no witnesses directly identified [Appellant] as the
man who fired on the street.” (Appellant’s Brief at 47).
Our standard of review is well-settled:
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when
viewed in the light most favorable to the Commonwealth as
verdict winner, was sufficient to enable the fact finder to
conclude that the Commonwealth established all of the
elements of the offense beyond a reasonable doubt. The
Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Further, the trier of fact is free to
believe all, part, or none of the evidence.
Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super. 2016), appeal
denied, 169 A.3d 1046 (Pa. 2017), and cert. denied sub nom. Rayner v.
Pennsylvania, 138 S. Ct. 976 (2018) (citation omitted).
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In this case, Appellant argues the evidence was insufficient to prove he
was the shooter because “[t]he Commonwealth presented no direct evidence”
that he was the man who committed the offense.7 (Appellant’s Brief at 48).
We disagree.
Walter Gardner testified that he saw the shooter and described him as
a slim, black male dressed in white. Reverend Scott testified he saw someone
shooting and he thought the shooter was one of Jared Weavers brothers. He
described the male as tall and slim. He had met the man prior to the funeral.
Captain Winters testified that he saw a “still image” from the Lancaster Safety
Coalition Camera of a black male wearing a white shirt. Laura Krautler gave
a description of Appellant. Detective McCrady testified that he looked at the
video footage and recognized Appellant. The video was played for the jury.
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7 Appellant raised the following issue in his Rule 1925(b) statement of matters
complained of on appeal: “Whether the verdict was premised on legally
insufficient evidence because the Commonwealth’s evidence did not
conclusively establish that [A]ppellant was the shooter?” (1925(b) Statement,
at 3). “When an appellant challenges the sufficiency of the evidence, this
Court has made clear our requirement that ‘an appellant's Rule 1925(b)
[S]tatement must state with specificity the element or elements upon which
the appellant alleges that the evidence was insufficient.’” Commonwealth
v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (citation omitted). Appellant
filed an overly broad Rule 1925(b) statement, thus waiving his challenge to
the sufficiency of the evidence. See id. Although Appellant has not identified
the element(s) of the crime(s) for which the evidence was insufficient, we will
address the issue.
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Based on the above evidence and viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, we conclude the evidence
was sufficient to establish that Appellant was the shooter. See Rayner, 153
A.3d at 1054. The jury was presented with plenty of circumstantial evidence
to form a conclusion that Appellant was the shooter. The jury is not required
to have direct evidence of Appellant’s identification, and Appellant cites no
case stating otherwise. Appellant’s sufficiency challenge does not merit relief.
Fourth, Appellant contends “the trial court’s aggregate sentence of 18
to 44 years in prison was improper.” (Appellant’s Brief at 49). Appellant
argues that the imposition of nine consecutive sentences, some in the
aggravated range, was unreasonable and should be vacated. (Id. at 54).
Appellant’s issue challenges the discretionary aspects of his sentence.
It is well settled that, with regard to the discretionary
aspects of sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge
to the discretionary aspects of a sentence], 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 [see Pa.R.A.P. 2119(f) ]; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the sentencing code.... [I]f
the appeal satisfies each of these four requirements, we
will then proceed to decide the substantive merits of the
case.
Commonwealth. v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (quotation
marks and citations omitted).
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Instantly, Appellant filed a timely notice of appeal, and preserved his
claim that his consecutive, aggravated-range sentence was an abuse of
discretion in the trial court. (See Post-Sentence Motion, 5/31/17). He has
also included in his appellate brief a separate Rule 2119(f) statement.
Therefore, we proceed to determine whether Appellant has presented a
substantial question that the trial court abused its discretion in sentencing
him. See Disalvo, 70 A.3d at 902.
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
Id. at 903 (citation omitted).
In his Rule 2119(f) statement, Appellant claims the sentence raises a
substantial question because the court imposed nine consecutive sentences
without adequate support, and imposed three of the sentences in the
aggravated range without sufficient justification. (Appellant’s Brief at 8-9).
Appellant contends the sentence was excessive because “all counts related to
essentially the same conduct- shooting a firearm on a street.” (Id. at 9). He
develops the claim in the argument section of his brief, asserting that his
sentence was excessive because of its consecutive nature in light of the
criminal conduct at issue. (Id. at 50). Appellant argues the court failed to
explain its reasoning for imposing a sentence outside of the sentencing
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guidelines. (Id. at 51). Appellant avers the sentence did not take into
consideration his rehabilitative needs. (Id. at 54).
In Commonwealth v. Mastromarino, 2 A.3d 581 (Pa. Super. 2010),
this Court held “the preliminary substantial question inquiry . . . is whether
the decision to sentence consecutively 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.” Id. at 588. “Any challenge to the exercise of this
discretion ordinarily does not raise a substantial question.” Id. at 587. “To
demonstrate that a substantial question exists, a party must articulate
reasons why a particular sentence raises doubts that the trial court did not
properly consider [the] general guidelines provided by the legislature.”
Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002) (quotation marks
and citations omitted). “[A]n [a]ppellant's challenge to the imposition of his
consecutive sentences as unduly excessive, together with his claim that the
court failed to consider his rehabilitative needs upon fashioning its sentence,
presents a substantial question.” Commonwealth v. Johnson-Daniels, 167
A.3d 17, 27 (Pa. Super. 2017), appeal denied, 174 A.3d 1029 (Pa. 2017)
(citation omitted).
Here, Appellant claims that his sentence was excessive because of its
consecutive nature despite their basis on the same conduct and, further, that
the trial court failed to consider his rehabilitative needs, thus raising a
substantial question. See Mouzon, 812 A.2d at 622; Johnson-Daniels, 167
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A.3d at 27; and Mastromarino, 2 A.3d at 588. We conclude Appellant has
raised a substantial question and proceed to review the merits of Appellant’s
claim. See Johnson-Daniels, 167 A.3d at 27.
Our standard of review of is well-settled.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Disalvo, 70 A.3d at 903 (citation omitted).
“[I]t is well accepted that [i]n imposing a sentence, the trial judge may
determine whether, given the facts of a particular case, a sentence should run
consecutive to or concurrent with another sentence being imposed.”
Commonwealth v. Bowen, 55 A.3d 1254, 1265 (Pa. Super. 2012), appeal
denied, 64 A.3d 630 (Pa. 2013) (citation and quotation marks omitted).
Moreover, we have long stated that “42 Pa.C.S. Section 9721 affords the
sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.” Johnson-Daniels, 167 A.3d at 28 (citation
omitted). “[W]here the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was aware of the
relevant information regard the defendant’s character and weighed those
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considerations along with mitigating statutory factors.” Commonwealth v
Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016), appeal denied, 159 A.3d
935 (Pa. 2016) (citation omitted).
In this case, our review of the certified record belies Appellant’s claim
that the trial court abused its discretion in imposing an excessive sentence
considering that all counts related to the same conduct. At sentencing, the
court considered the presentence investigation report. (See N.T. Sentencing
Hearing, 4/17/17, at 4). The court considered Appellant’s father’s statements,
Appellant’s statements and the argument of his counsel. (Id. at 7-11).
The trial court opined:
Although Counts 1, 3, and 9[8] were in the aggravated
range, none of [Appellant’s] sentences exceeded the
statutory maximum, and as such, were within the
sentencing guidelines. With respect to the aggravated
range sentences, as well as the consecutive sentences, the
court gave an extensive narrative at [Appellant’s]
Sentencing Hearing discussing his behavior and the reasons
why such impositions were necessary. When fashioning
[Appellant’s] sentence, the court took into account
numerous considerations comprising the totality of the
circumstances surrounding [Appellant] and his crimes,
including those enunciated in 42 Pa.C.S. § 9721(b) (i.e.
requiring consideration of the general public and its safety,
the gravity of the offense, and [Appellant’s] rehabilitative
needs), as well as the information contained in the PSI
report.
....
Great consideration was given to [Appellant’s] situation
and the circumstances surrounding it. The court referenced
____________________________________________
8Aggravated Assault, Firearms Not to be Carried Without a License; and
Discharge of Firearm into an Occupied Structure, respectively.
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extensive documentation, as well as counsel’s arguments
and [Appellant’s] statements at the sentencing hearing.
....
The court is satisfied that the aggregate sentence of
eighteen (18) to forty-four (44) years’ incarceration reflects
the magnitude of [Appellant’s] crimes and achieves the
requisite rehabilitative, deterrent, and safety objectives.
(Trial Court Opinion, 8/7/17, at 6-8).
We discern no abuse of discretion. See Disalvo, 70 A.3d at 903. Here,
the sentencing court stated that it had reviewed the PSI, the sentencing
guidelines, Appellant’s remarks, and counsel’s arguments. See Finnecy, 135
A.3d at 1038. Moreover, we have long stated that the sentencing court has
discretion to impose its sentence concurrently or consecutively. See
Johnson-Daniels, 167 A.3d at 28. Thus, Appellant’s challenge to the
discretionary aspects of his sentence lacks merit.
Lastly, Appellant avers “[i]f the only issue raised by the appellant is a
discretionary sentencing issue, and the Superior Court chooses not to review
the sentence, the appellant loses his right to appeal.” 9 (Appellant’s Brief at
59). Appellant states that “[i]f this Court determines that his claims do not
raise a substantial question, however, his constitutional right to appeal will
____________________________________________
9 Instantly, we note Appellant did not raise this issue in his post-sentence
motion. He raised it in his Rule 1925(b) statement. However, “[a] party
cannot rectify the failure to preserve an issue by proffering it in response to a
Rule 1925(b) order.” Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.
Super. 2003) (citation omitted).
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have been denied.” (Id.). However, this Court has addressed the
discretionary aspect of his sentence. Therefore, we need not address this
issue. Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judge Panella joins the Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2018
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