Com. v. Jefferson, A. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY JEFFERSON, : No. 884 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, August 5, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0012737-2012
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 13, 2015
Anthony Jefferson appeals from the August 5, 2013 judgment of
sentence following his conviction of first-degree murder, robbery, and
conspiracy to commit robbery.1 We affirm.
The trial court has set forth the underlying facts of this matter as
follows:
At approximately 1:00 PM on November 14,
2011, Joseph Boone arrived in the 2100 block of
Bentley Drive, a housing project in the Hill District
section of the City of Pittsburgh, Allegheny County,
and began talking with friends. Several days prior,
Azsion Upshur, Anthony Jefferson (Appellant), and
Raymond Pendleton planned to rob Boone. They
targeted Boone because they knew him to sell
marijuana, and believed he would have cash on him.
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(a), 3701(a)(i) and (ii), and 903(a)(1), respectively.
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According to their plan, Pendleton was to lure Boone
into the hallway of a building and then call Upshur
and Appellant to complete the robbery. Pursuant to
this plan, when Boone arrived in the afternoon of
November 14, Pendleton called Upshur and stayed
on the phone with him as he beckoned Boone into
the hallway of 2112 Bentley Drive. Once Boone was
in the hallway, Upshur notified Appellant and both
immediately headed to the site.
When Boone saw Appellant and Upshur
running towards the hallway in masks he attempted
to escape by running up the interior steps of the
building. Appellant instructed Pendleton to leave the
area, and Appellant and Upshur pursued Boone up
the steps. Appellant was armed with a revolver even
though the use of a firearm was not specifically part
of the original plan. Appellant and Upshur fought
with Boone as they tried to rob him, dragging him
back down the steps and striking his head several
times against the mailboxes inside the hallway on
the first floor. The struggle caused Boone to wriggle
out of his several shirts, both shoes, and a sock in
his effort to get free. Shirtless and shoeless, Boone
yelled, “take it, take it, you can have it,” as he
managed to flee into the courtyard. As Boone ran
away Appellant followed and shot him in the hip,
causing Boone to fall to the ground in the courtyard.
Appellant caught up to Boone, stood over him, and
shot him a second time. Appellant and Upshur fled
the area together.
Several neighbors moved Boone from the
courtyard to the curb so that paramedics could more
easily reach him. While awaiting the medics,
Pendleton approached the area where Boone lay on
the sidewalk. Boone pointed at him and said, “your
niggas did this to me.” Boone was transported to
Mercy Hospital where he underwent emergency
surgeries in an attempt to save his life, but these
efforts were to no avail. Boone suffered multiple
blunt force injuries, head trauma, lacerations to the
back of his head and face, a gunshot wound to the
right abdomen and a gunshot wound to the right hip.
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Boone died as a result of a perforating gunshot
wound of the trunk which lacerated his liver and
aorta. The medical examiner was able to determine
that the muzzle of the firearm was less than three
feet away from Boone’s body when the fatal shot
was fired.
Pendleton called Appellant and Upshur later
that day about what occurred. Both Appellant and
Upshur admitted they shared approximately $200
taken from Boone, and Appellant stated, “My bad
bro, I didn’t mean for things to go this far.” In
response Upshur stated, “You know how things go.
We got a couple of dollars.” Based upon interviews
of Pendleton and several other witnesses, Appellant
was interviewed. Appellant told police that he
robbed Boone at gunpoint and shot him twice
following a struggle for the gun. Appellant was
charged as noted hereinabove.
Trial court opinion, 4/15/15 at 6-8 (citations and footnotes omitted). The
trial court summarized the procedural history of this case as follows:
[Appellant] was charged by criminal
information with one count of criminal homicide, two
counts of conspiracy, one count of person not to
possess a firearm, one count of robbery, and one
count of carrying a firearm without a license.
Appellant proceeded to a jury trial on May 13-
20, 2013, at the conclusion of which Appellant was
found guilty of first degree murder, robbery, and
conspiracy to commit robbery; he was found not
guilty of the firearms charge.
On August 5, 2013, Appellant was sentenced
by the Trial Court to the following: Count one: first
degree murder – life imprisonment; Count two:
robbery – six to twelve years incarceration to be
served consecutive to the period of incarceration
imposed at count one; Count four: conspiracy to
commit robbery – six to twelve years incarceration to
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be served consecutive to the period of incarceration
imposed at count two.
On August 8, 2013, Appellant filed a post
sentence motion, which was denied by the Trial
Court on November 27, 2013.
On April 15, 2014, the Trial Court granted
Appellant’s PCRA Petition to reinstate his appellate
rights nunc pro tunc, and ordered that the notice of
appeal be filed no later than May 29, 2014.
On May 29, 2014, Appellant filed a notice of
appeal, [and the Trial Court filed an opinion pursuant
to Pa.R.A.P. 1925.]
Trial court opinion, 1/15/15 at 2-3 (citations and footnotes omitted).
Appellant has raised the following issues for our review:
I. Whether the trial court erred in failing to grant
appellant’s motion to suppress his statement
on the grounds that the statement was not
voluntarily given and was obtained in violation
of appellant’s Miranda rights?
II. Whether the trial court erred in failing to grant
appellant’s request to postpone trial?
III. Whether the trial court erred in admitting
Commonwealth’s Exhibit One (1) over
appellant’s objection that it was highly
prejudicial and had no probative value?
IV. Whether the sentence imposed was excessive?
V. Whether the trial court erred in denying
appellant’s post-sentence motions without a
hearing?
Appellant’s brief at 9 (capitalization omitted).
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The first issue for our review is whether the trial court erred in failing
to grant appellant’s motion to suppress his statement to police regarding the
homicide of Joseph Boone (“victim”). When reviewing suppression matters,
we are bound by any finding of fact by the suppression court that is
supported by the record; however, any legal decisions by the suppression
court are subject to de novo review. Commonwealth v. James, 69 A.3d
180, 186 (Pa. 2013) (citations omitted). Any matters concerning credibility
of witnesses and the weight of evidence presented are strictly within the
purview of the suppression court. Commonwealth v. Davis, 102 A.3d
996, 999 (Pa.Super. 2014) (citations omitted).
Our supreme court has instructed that when considering whether a
waiver of Miranda2 rights is valid, a court must consider the following
factors:
(1) [W]hether the waiver was voluntary, in the
sense that the waiver was not the result of
government pressure; and (2) whether the waiver
was knowing and intelligent, in the sense that it was
made with full comprehension of both the nature of
the right being abandoned and the consequence of
that choice.
Commonwealth v. Patterson, 91 A.3d 55, 76 (Pa. 2014) (citations
omitted). The court further stated that factors to be considered when
determining whether a waiver of Miranda is valid and a subsequent
statement or confession is voluntary are as follows:
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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the duration and means of interrogation; the
defendant’s physical and psychological state; the
conditions attendant to the detention; the attitude
exhibited by police during the interrogation; and any
other facts which may serve to drain one’s powers of
resistance to suggestion and coercion.
Id.
The Commonwealth directs our attention to a case previously
considered by this court that is analogous to the facts presently at issue.
(Commonwealth’s brief at 23.) In Commonwealth v. Watkins, 750 A.2d
308, 311 (Pa.Super. 2000), the defendant, based on a court order, was
transported from the Allegheny County Jail, where he was serving time on
an unrelated sentence, to the homicide offices of the Pittsburgh Police
Department. After being informed of and waiving his Miranda rights, the
defendant confessed to committing a homicide after approximately
five hours of interrogation, including a polygraph test. Id. at 312. Much like
appellant, the defendant in Watkins refused to allow detectives to
tape record his confession, but he adopted and signed a statement written
by detectives containing his confession. Id.
The court found that the defendant’s confession in Watkins was
voluntary. Id. at 314. Specifically, the court noted that:
Although [defendant] was in police custody for
nearly nine hours, appellant was subjected to only
three hours and twenty-nine minutes of actual
interrogation. It is not clear whether [defendant]
was shackled during his interrogation; however, this
is a standard practice employed by the police due to
previous attempted escapes. Since [defendant] was
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in custody for another offense at the time of the
interrogation and left alone during breaks in the
questioning, the securing of [defendant] by the
police reflected prudent police conduct rather than
coercive conduct. . . . In addition, we note that
[defendant] was fully informed of his Miranda rights
and made a knowing and voluntary waiver of those
rights. Furthermore, [defendant] asserts no specific
misconduct in the form of physical or psychological
intimidation by the police.
Id.
In the instant case, appellant was transported from the
Allegheny County Jail to the City of Pittsburgh homicide office to answer
questions regarding the victim’s death. (Notes of testimony, 5/9/13 at 20.)
From the time he was released from the Allegheny County Jail to the time he
returned, appellant was only subject to police custody for five hours and
twelve minutes. (Id. at 23, 38.) The record is also completely devoid of
any allegations of police misconduct or any incidents of physical or
psychological coercion by the police. Appellant, while not completely free to
leave due to his incarceration for an unrelated offense, was free to refuse to
answer the detectives’ questions and was free to end the interview at any
time, and was made aware of his ability to do so by detectives. (Id. at 20-
21.) At no point during the interrogation did appellant indicate that he
wished to return to the Allegheny County Jail.3 (Id. at 59.)
3
While appellant testified that he expressed a desire to be taken back to the
jail seven times, the suppression court is the sole arbiter of the facts, and
absent a misapplication of law, we are bound to the suppression court’s
factual findings. (Id. at 48, 59; see James, supra.)
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Finally, much like the defendant in Watkins, appellant knowingly and
intelligently waived his Miranda rights. (Id. at 10-13.) Specifically, the
police had appellant initial a prepared form several times indicating that he
understood that (1) he had the right to refuse to answer any police
questions; (2) that he had the right to have an attorney present during
questioning; and (3) that he could end the interrogation at any time after it
started by refusing to answer any more questions. (Id. at 11-12.) After
individually acknowledging each of these rights, appellant indicated that he
was willing to waive his rights by signing the prepared Miranda form. (Id.
at 13.) The detectives discussed appellant’s rights with him before they
began their interrogation. (Id. at 40.)
Therefore, we find that appellant voluntarily waived his Miranda rights
when he gave his statement to the police, and that his first issue is without
merit.
Appellant’s second issue is whether the trial court erred in refusing to
grant appellant a continuance. Appellant made two requests for a
continuance. The first came at the suppression hearing held on May 9,
2013, when appellant requested a continuance after it became apparent to
him that the Commonwealth would not be offering him a plea deal. (Id. at
2-3.) The suppression judge denied appellant’s request after defense
counsel indicated in open court that she was ready to proceed. (Id. at 3.)
The second request for a continuance came on the first day of trial just
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before the jury was empaneled and sworn. (Notes of testimony, 5/13/13 at
25.) This request was made due to defense counsel having received new
discovery material from the Commonwealth and having learned new
information from appellant two days prior to the start of trial. (Id. at 5, 7,
9, 11.) The trial judge denied appellant’s second request for a continuance,
but did allow defense counsel to take whatever time was required to
interview potential new witnesses that were identified in the
Commonwealth’s discovery information.4 (Id. at 25-26.)
The standard of review that we must follow for a trial court’s decision
to grant or deny continuances is well settled.
The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will
be reversed only upon a showing of an abuse of
discretion. Commonwealth v. Boxley, 948 A.2d
742, 746 (Pa. 2008). An abuse of discretion is not
merely an error of judgment; rather discretion is
abused when the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence on the record. Moreover,
a bald allegation of an insufficient amount of time to
prepare will not provide a basis for reversal of the
denial of a continuance motion. Commonwealth v.
Ross, 57 A.3d 85, 91 (Pa.Super. 2012). An
4
The new discovery information defense counsel had been made aware of
two days prior to the start of trial was as follows: copies of inventory
reports from the crime lab and the identity of three potential witnesses:
Denise Hayden, Edwin Williams, and Charles Washington. (Notes of
testimony, 5/13/13 at 14, 18, 21.) Hayden did not have any information
regarding the victim’s murder, and Williams and Washington helped move
the victim closer to the street. (Id. at 21.) There is no indication that any
of these witnesses, who were not called at trial, would have affected
appellant’s case.
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appellant must be able to show specifically in what
manner he was unable to prepare for his defense or
how he would have prepared differently had he been
given more time. We will not reverse a denial of a
motion for continuance in the absence of prejudice.
Id.
Commonwealth v. Antidormi, 84 A.3d 736, 745-746 (Pa.Super. 2014)
(citations omitted). We shall address both of appellant’s motions for
continuance separately according to the standards set by this court in
Antidormi.
We first address the continuance motion that was made just prior to
the start of the suppression hearing on May 9, 2013. A written motion for
continuance does not appear in the record; however, defense counsel did
orally request a continuance prior to the suppression hearing. (Notes of
testimony, 5/9/13 at 2-3.) Defense counsel indicated that appellant had
learned the morning of the suppression hearing that the Commonwealth
would not be offering any sort of plea deal in his case, and as a result,
appellant asked for “additional time to prepare for his trial.” (Id. at 2.) The
trial court then asked defense counsel if, in light of various motions filed on
appellant’s behalf, she was prepared to proceed to trial. (Id. at 3.) After
defense counsel answered in the affirmative, the trial court denied
appellant’s motion. (Id.)
This is nothing more than a bald allegation of appellant not having a
sufficient amount of time to prepare for trial. At no point during the initial
request for a continuance or in his brief to this court does appellant fulfill the
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requirements set forth by this court in Antidormi by indicating what he
would have done differently to prepare for trial in light of learning that the
Commonwealth would not be offering a plea deal. Since appellant has failed
to articulate with any specificity how he would have prepared differently if
his first motion for continuance had been granted, the trial court did not
abuse its discretion when it denied appellant’s motion.
We now turn to appellant’s second motion for continuance which was
filed on the first day of trial on May 13, 2013. This motion was made by
defense counsel after receiving 50 pages of discovery material from the
Commonwealth which contained the names of three witnesses that were
previously unknown to the defense, in addition to receiving new information
that defense counsel had received from appellant. (Appellant’s brief at 24.)
Appellant states that this continuance was required because of the recent
disclosures from the Commonwealth and appellant to defense counsel, the
“previously prepared line of defense was substantially altered, and that
defense counsel needed time to prepare an adequate defense.” (Id. at 25.)
Appellant further states that had the continuance motion been granted,
defense counsel “would have had adequate time to properly investigate and
interview the newly discovered Commonwealth witnesses, as well as had
adequate time to prepare a new line of defense.” (Id.)
Appellant also asserts that defense counsel had inadequate time to
properly interview the newly disclosed Commonwealth witnesses. This is
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simply not supported by the facts in the record. When discussing appellant’s
motion for continuance with defense counsel and the Commonwealth, the
trial judge told defense counsel that they would “have an opportunity to
interview him over lunch, and I will give you whatever time you need.
That’s the only thing I see in this entire package that would delay the start
of this trial.” (Notes of testimony, 5/13/13 at 25.) Therefore, appellant’s
claim that defense counsel did not have the opportunity to interview the
Commonwealth’s newly disclosed witnesses is without merit, and appellant
was not prejudiced by the trial court’s denial of his second motion for a
continuance.
Aside from interviewing the Commonwealth’s newly disclosed
witnesses, appellant fails to articulate how he would have prepared for trial
differently had the trial court granted his second request for a continuance.
A need for “additional time to properly prepare a new line of defense” is little
more than a bald allegation of appellant not having adequate time to
prepare for trial, which as discussed above is not grounds for a reversal of a
denial of a continuance motion. Antidormi, 84 A.3d at 745. Therefore,
appellant’s arguments relating to his second motion for continuance are
without merit, and we find that the trial court did not abuse its discretion
when it denied appellant’s motion.
Appellant’s third issue for our review is whether the trial court erred in
admitting a photograph into evidence that appellant claims was highly
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prejudicial and lacking in any probative value. The photograph at issue
depicts the victim and the crime scene when the police initially arrived.
(Notes of testimony, 5/13/13 at 81-82.)
The standard by which photographs depicting crime scenes are
admitted into evidence is well settled.
The admissibility of photographic evidence
depicting a crime scene is within the sound discretion
of the trial court, and the trial court’s ruling will be
reversed only upon an abuse of that discretion.
Commonwealth v. Baez, 720 A.2d 711, 726 (Pa.
1998). In determining whether to admit a
photograph or videotape of a murder victim, a trial
court must engage in a two-step analysis.
Commonwealth v. Pruitt, 951 A.2d 307, 319 (Pa.
2008). First, the court must determine whether the
photograph is inflammatory. If it is not, the
photograph may be admitted if it has relevance and
can assist the jury’s understanding of the facts. If
the photograph is inflammatory, the court must
determine whether the essential evidentiary value of
the photograph will improperly inflame the minds
and passions of the jury. Id.
Commonwealth v. Patterson, 91 A.3d 55, 67 (Pa.Super. 2014).
In the instant case, the Commonwealth attempted to admit a
newspaper photograph into evidence depicting the victim and “panicked and
screaming civilians.” (Notes of testimony, 5/13/13 at 83.) When the
Commonwealth attempted to admit the photograph through Officer
Norine Kelly, defense counsel objected, stating that the prejudicial value of
the photograph outweighed its probative value. (Id. at 82.) The trial judge
sustained the objection, instructing the Commonwealth that the photograph
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would be admitted if the “panicked and screaming civilians” were removed
from the photograph. (Id. at 83.) An edited version of the photograph was
later admitted into evidence. (Id. at 122.) Later in the trial, the
Commonwealth called Theresa Thornhill, the victim’s sister, to testify.
(Notes of testimony, 5/15/13 at 439.) At that point, the Commonwealth
sought to admit an unedited version of the photograph into evidence
because the photograph depicted Thornhill’s emotional state. (Id. at 436.)
Defense counsel again objected, and the trial court overruled their
objections. (Id.)
During the two times that the Commonwealth attempted to introduce
the photograph into evidence for admission, the trial court conducted a
balancing test to determine whether the probative value of the photograph
outweighed its prejudicial value. When the Commonwealth first attempted
to introduce the photograph, the trial court sustained defense counsel’s
objections, stating that the presence of screaming civilians would cause
prejudice to appellant. (Notes of testimony, 5/13/13 at 83.) When the
Commonwealth called Thornhill to testify, and again sought to introduce the
unedited photograph, the trial court found that since Thornhill was depicted
in the photograph, the photograph’s probative value outweighed its
prejudicial value:
Now that she’s [Thornhill] testifying, she can identify
herself in the photograph and the circumstances.
Certainly goes to the jury should know what her
state of mind was. Not necessarily her state of mind
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but what her demeanor was and what was going on
at that juncture when she undertook to help assist
her brother and also her subsequent interpretation of
his gesture.[5] That will be admissible at this
juncture.
Notes of testimony, 5/15/13 at 436-437. In addition to conducting two
separate balancing tests in regards to the photograph, the trial court also
offered a cautionary instruction to the jury regarding the scene depicted in
the photograph:
Ladies and gentlemen, the photograph, of course,
was not gruesome or inflammatory to any degree
but it depicts an emotional situation as you saw. It
is admitted solely for the purposes of identifying
persons present and their behavior and reaction at
the times may reflect on their memories and
impressions now that they were given to you in
court.
Id. at 449.6
Based on the record before us, we find that the trial court did not
abuse its discretion when it admitted the unedited photograph into evidence.
On both occasions that the Commonwealth attempted to have the
photograph admitted, the trial court conducted a balancing test to determine
whether the photograph’s probative value was outweighed by its prejudicial
effect. The record does not indicate that the conclusion the trial court
5
Thornhill testified that the victim was gesturing toward a group of men,
indicating that one of them had shot him. (Notes of testimony, 5/15/13 at
442.)
6
The trial court also provided further cautionary instructions to the jury
before deliberations. (See notes of testimony, 5/16/13 at 622.)
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reached is the result of a misapplication of law, nor does it indicate that the
trial court’s decision was the result of bias, prejudice, or ill-will. Therefore,
appellant’s argument that the photograph is highly prejudicial and lacks any
probative value is without merit.
Appellant’s fourth issue is whether the trial court imposed an excessive
sentence by ordering two sentences to be served consecutively to a
sentence of life imprisonment without the possibility of parole.
A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a
matter of right. Commonwealth v. Hunter, 768
A.2d 1136 (Pa.Super. 2001)[,] appeal denied, 796
A.2d 979 (Pa. 2001). When challenging the
discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement
demonstrating that there is a substantial question as
to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 812
A.2d 617 (Pa. 2002); Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987); 42 Pa. C.S.A.
§ 9781(b); Pa.R.A.P. 2119(f). “The requirement that
an appellant separately set forth the reasons relied
upon for allowance of appeal ‘furthers the purpose
evident in the Sentencing Code as a whole of limiting
any challenges to the trial court’s evaluation of the
multitude of factors impinging on the sentencing
decision to exceptional cases.’” Commonwealth
v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1987)
(en banc) (emphasis in original).
Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).
An appellant’s Rule 2119(f) statement is required to include an
articulation of “what particular provision of [the Sentencing] Code is
violated, what fundamental norms the sentence violates, and the manner in
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which it violates the norm.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa.Super. 2014) (citations omitted).
Appellant’s Rule 2119(f) statement is as follows:
Pursuant to Rule 2119(f), the reasons relied on
for allowance of appeal with respect to the
discretionary aspects of the sentence are as follows:
1) appellant was convicted of one (1) count of
Murder in the First Degree, which carried a
mandatory sentence of life without the possibility of
parole; 2) the Honorable Edward J. Borkowski then
sentenced Appellant to two (2) consecutive periods
of incarceration of six (6) to twelve (12) months for
one (1) count of Robbery and one (1) count of
Conspiracy to Commit Robbery, despite the fact that
Appellant already received a sentence of life without
the possibility of parole; 3) by running appellant’s
sentences for robbery and conspiracy consecutive,
the Honorable Edward J. Borkowski abused his
discretion as the additional sentences were wholly
unnecessary.
Appellant’s brief at 29-30.
The Commonwealth claimed that appellant failed to include a
Rule 2119(f) statement in his brief:
The appellant in the instant case, although
mentioning Rule 2119(f) in the body of his
argument, has failed to include a separate statement
in his brief.
Commonwealth’s brief at 40-41. This court has consistently held that a
failure by an appellant to articulate a sufficient Rule 2119(f) statement along
with an objection from the Commonwealth will result in this court being
precluded from considering the issue. Commonwealth v. Karns, 50 A.3d
158, 166 (Pa.Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013). See
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also Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa.Super. 2013),
appeal denied, 91 A.3d 161 (Pa. 2014) (“We disapprove of Appellant’s
failure to indicate where his sentences fell in the sentencing guidelines and
what provision of the sentencing code was violated);7 Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa.Super. 2000) (requiring a Rule 2119(f)
statement to include allegations of violations of the sentencing guidelines or
the sentencing code).
Appellant, while referencing a violation of fundamental norms in his
Rule 2119(f) statement by citing the consecutive sentences imposed in
addition to his life sentence, fails to cite any violations of the sentencing
guidelines or the sentencing code. Moreover, appellant’s Rule 2119(f)
statement is in the body of the argument section of his brief instead of being
set forth separately pursuant to the Rules of Appellate Procedure.
Therefore, the issue is waived.
Even if appellant were to submit a sufficient Rule 2119(f) statement,
appellant has failed to raise a substantial question into the discretionary
aspects of his sentence. A substantial question is raised when an 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
7
The Dodge court ultimately considered the appellant’s case on its merits
because the Commonwealth failed to object to the appellant’s lack of a
Rule 2119(f) statement. Id.
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process.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(citation omitted). We have previously stated that consecutive sentences
that do not impose a manifestly excessive sentence do not constitute a
substantial question. Dodge, 77 A.3d at 1269.
In the instant case, as a result of being convicted of first-degree
murder, appellant was sentenced to the mandatory minimum sentence of life
imprisonment without the possibility of parole. (Notes of testimony, 8/5/13
at 10.) Given the very nature of appellant’s sentence for first-degree
murder, it is impossible for the sentencing court to impose a sentence for
robbery and conspiracy to commit robbery, regardless of whether the
sentence was consecutive or concurrent to the murder sentence, that would
impose a manifestly excessive sentence. Therefore, even if appellant
included a sufficient Rule 2119(f) statement, his underlying argument lacks
merit.
The fifth and final issue appellant raises for our review is whether the
trial court erred when it denied appellant’s post-sentence motions without a
hearing. The Pennsylvania Rules of Criminal Procedure provide, in relevant
part, that upon a filing of post-sentence motions, “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.”
Pa.R.Crim.P. 720(B)(2)(b). A judge is not required to hold a hearing or oral
argument when considering a post-sentence motion. Id., Comment. This
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court has also stated that a defendant’s due process rights are not violated
when the trial court does not hold a hearing to consider a defendant’s
post-sentence motions, and that the trial judge has discretion over whether
or not to hold a hearing. Commonwealth v. Gaffney, 702 A.2d 565, 566
(Pa.Super. 1997), affirmed, 733 A.2d 616 (Pa. 1999).8
Appellant has made no argument that the trial court was in violation of
the relevant Rules of Criminal Procedure. A plain reading of
Rule 720(B)(2)(b) indicates that the trial judge is well within his discretion to
determine that a post-sentence motion hearing is not required. Therefore,
we find that the trial judge did not abuse his discretion and this claim is
without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2015
8
The Gaffney court considered the provisions of Pa.R.Crim.P.
1410(B)(2)(b). Gaffney, 702 A.2d at 566. Pa.R.Crim.P. 1410(B)(2)(b) is
identical to Rule 720(B)(2)(b).
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