Com. v. Daniel, L. ( 2018 )

J-S23022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMONT CARLTON DANIEL :
:
Appellant : No. 1359 EDA 2017
Appeal from the Judgment of Sentence December 12, 2016
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000319-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED JULY 18, 2018
Appellant Lamont Carlton Daniel appeals from the judgment of sentence
of seven to fifteen years’ imprisonment following a jury trial and convictions
for possession with intent to distribute of a controlled substance (PWID),1
possession of a controlled substance,2 and possession of drug paraphernalia.3
On appeal, Appellant raises five issues, including challenges to the warrantless
search of his apartment, evidence regarding his status as a state parolee, and
a “missing witness” jury charge. We affirm.
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(16).
3 35 P.S. § 780-113(a)(32).
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We adopt the facts and procedural history set forth in the trial court’s
opinion. Trial Ct. Op., 6/1/17, at 1-6. We also add that the suppression record
established that Appellant’s landlord physically opened a rear window, through
which the parole officers gained access to search Appellant’s apartment. N.T.
Suppression Hr’g, 4/27/16, at 8.
At trial, the Commonwealth presented evidence that Appellant was a
parolee. Appellant testified in his defense and asserted that the drugs found
in his apartment belonged to “Terrance,” or “T” (Terrance). However,
Appellant did not call Terrance to testify. The court, in relevant part,
instructed the jury as follows: “You should not disbelieve the defendant merely
because he is the defendant or because he was on state parole, nor may you
infer any guilt because he was on state parole.” N.T. Trial (charge), 6/16/16,
at 12. The trial court also issued a missing witness instruction as to Terrance.
Moreover, as explained in further detail below, the jury notified the court
that it arrived at a verdict on two charges but indicated it was deadlocked on
the PWID charge. The court gave supplemental instructions to the jury and,
after an additional half-hour of deliberation, the jury found Appellant guilty of
all charges. Following a pre-sentence investigation,4 the court sentenced
Appellant on December 12, 2016, to seven to fifteen years’ incarceration.
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4 We discuss the investigation in further detail below.
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Appellant filed a timely post-sentence motion challenging, among other
issues, the discretionary aspects of his sentence. The court denied Appellant’s
post-sentence motion, and he timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) statement.
In his brief, Appellant raises five issues:
1. Did the [trial] court err in denying [Appellant’s] motion to
suppress the evidence found by the state parole officers when,
without a warrant, they searched [Appellant’s] apartment and
located the drugs and other paraphernalia?
2. Did the [trial] court err in denying [Appellant’s] motion in limine
which requested that no testimony be allowed as to [Appellant]
being on “state parole” based on the likely prejudicial effect?
3. Did the [trial] court err in, either sua sponte or at the
Commonwealth’s request, grant the giving of the “missing
witness” jury charge as it related to two uncalled witnesses?
4. Did the [trial] court improperly prejudice the jury deliberation
through its comments made to the jury after the jury issued a
message indicating that they were unable to reach a verdict on
one of the three charges [Appellant] was facing?
5. Did the [trial] court impose an overly harsh sentence which was
well beyond the aggravated range of the sentencing guidelines
without any clear justification or reason?
Appellant’s Brief at 9-10 (some capitalization omitted).
Warrantless Search of Parolee’s Apartment
First, Appellant contends that the parole officers lacked reasonable
suspicion to search his apartment. Id. at 21. Specifically, Appellant posits
that reasonable suspicion was lacking because the parole officers relied on
Appellant’s prior criminal history, Appellant’s recent positive drug test, and
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the anonymous phone call of uncertain veracity. Id. at 24. In Appellant’s
view, the Commonwealth required additional evidence before searching his
residence. Id. at 24-25.
The standard of review follows:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016).
In Commonwealth v. Williams, 692 A.2d 1031 (Pa. 1997), the
Pennsylvania Supreme Court discussed warrantless searches of a parolee’s
residence:
the parolee’s signing of a parole agreement giving his parole
officer permission to conduct a warrantless search does not mean
either that the parole officer can conduct a search at any time and
for any reason or that the parolee relinquishes his Fourth
Amendment right to be free from unreasonable searches. Rather,
the parolee’s signature acts as acknowledgement that the parole
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officer has a right to conduct reasonable searches[5] of his
residence listed on the parole agreement without a warrant. A
search will be deemed reasonable if the totality of the evidence
demonstrates: (1) that the parole officer had a reasonable
suspicion that the parolee had committed a parole violation, and
(2) that the search was reasonably related to the parole officer’s
duty.
Id. at 1036.
The Pennsylvania Supreme Court in Commonwealth v. Arter, 151
A.3d 149 (Pa. 2016), reaffirmed the “reasonable suspicion” basis identified by
the Williams Court: “pursuant to 42 Pa.C.S. § 9912, the General Assembly
has made the policy determination that searches of parolees and probationers
____________________________________________
5 “The determination of whether reasonable suspicion exists is to be
considered in light of the totality of the circumstances.” Commonwealth v.
Colon, 31 A.3d 309, 315 (Pa. Super. 2011).
In establishing reasonable suspicion, the fundamental inquiry is
an objective one, namely, whether the facts available to the officer
at the moment of the intrusion warrant a man of reasonable
caution in the belief that the action taken was appropriate. This
assessment, like that applicable to the determination of probable
cause, requires an evaluation of the totality of the circumstances,
with a lesser showing needed to demonstrate reasonable suspicion
in terms of both quantity or content and reliability.
Commonwealth v. Moore, 805 A.2d 616, 619-20 (Pa. Super. 2002)
(quotation marks, brackets, and citations omitted). The Moore Court
explained, “[r]easonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be established with
information that is different in quantity or content than that required to
establish probable cause, but also in the sense that reasonable suspicion can
arise from information that is less reliable than that required to show probable
cause.” Id. at 620 (citations omitted).
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must be supported by a reasonable suspicion that the offender is in violation
of the conditions of his probation or parole[.]” Arter, 151 A.3d at 165.6
Sections 6153(d)(2) and (d)(6) of the Prisons and Parole Code state as
follows:
(2) A property search may be conducted by an agent if there is
reasonable suspicion to believe that the real or other property in
the possession of or under the control of the offender contains
contraband or other evidence of violations of the conditions of
supervision.
* * *
(6) The existence of reasonable suspicion to search shall be
determined in accordance with constitutional search and seizure
provisions as applied by judicial decision. In accordance with such
case law, the following factors, where applicable, may be taken
into account:
(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of agents with the offender.
(vi) The experience of agents in similar circumstances.
(vii) The prior criminal and supervisory history of the
offender.
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6 In Arter, it was undisputed the parole officer lacked reasonable suspicion
for a warrantless search and thus, the seized evidence should have been
suppressed under the exclusionary rule, “which bars the use of evidence
obtained through an illegal search and seizure.” Arter, 151 A.3d at 153.
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(viii) The need to verify compliance with the conditions of
supervision.
61 Pa.C.S. § 6153(d)(2), (6). With respect to establishing reasonable
suspicion, a “tip from an unknown or anonymous informant requires some
degree of corroboration to justify the finding of reasonable suspicion.” In re
J.E., 937 A.2d 421, 426 (Pa. 2007). After careful consideration of the parties’
briefs and our close review of the record, we affirm on the basis of the trial
court’s opinion. See Trial Ct. Op. at 13-14.
Prejudicial Effect of Appellant’s “State Parole” Status
Second, Appellant argues the court erred by denying his motion in limine
to prohibit the Commonwealth from using the phrase “state parole.”
Appellant’s Brief at 25. That phrase, Appellant reasons, would result in a
moderately sophisticated juror presuming he had committed a serious
offense. Id. Appellant opines that the resulting prejudice impacted the
fairness of his trial. Id.“Our Court reviews the grant of such a motion [in limine] by applying
the scope of review appropriate to the particular evidentiary matter at issue.
We note that this Court may reverse rulings on the admissibility of evidence
only if it is shown that the trial court abused its discretion.” Commonwealth
v. Phillips, 700 A.2d 1281, 1284 (Pa. Super. 1997) (citations and internal
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quotation marks omitted).7 The critical inquiry is whether the probative value
of the evidence of the defendant’s parolee status outweighs any prejudicial
impact. Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa. Super. 2010)
(holding probative value of evidence of defendant’s state parole status
outweighed any prejudicial impact as it established motive). “[T]here is no
per se rule that requires a new trial for a defendant every time there is a
reference to prior criminal activity.” Commonwealth v. Wallace, 561 A.2d
719, 724-25 (Pa. 1989) (citation omitted). Upon review of the parties’ briefs
and the record, we affirm on the basis of the trial court’s decision. See Trial
Ct. Op. at 20.
Propriety of the “Missing Witness” Jury Instruction
By way of background to Appellant’s third argument, as noted above,
Appellant testified at trial that the drugs belonged to Terrance. Additionally,
Appellant’s girlfriend testified for the defense and asserted, in relevant part,
that she had Terrance’s phone number. N.T. Trial (morning), 6/16/16, at 55.
The Commonwealth requested a “missing witness” jury charge. The
Commonwealth insisted that only Appellant had Terrance’s contact
information and it had no ability to call Terrance as a witness. Id. at 66.
Appellant objected on the basis that the defense had insufficient information
____________________________________________
7We may rely on cases predating the enactment of the Pennsylvania Rules of
Evidence so long as they do not contradict the rules. Commonwealth v.
Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).
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to locate Terrance and that, if called, Terrance would have to admit “criminal
conduct.” Id. at 65. The Commonwealth countered that the record
established that only Appellant had the necessary contact information. Id. at
66.
The trial court overruled Appellant’s objection and issued the following
instruction:
There’s a question about the weight, if any, you should give to the
failure of [Appellant] to call a witness or witnesses. You heard
about this person T. So the question is if three factors are present
and there’s no satisfactory explanation for a party’s failure to call
a potential witness, the jury is allowed to draw a common sense
inference that the testimony would have been unfavorable to the
party. The three accessory factors are, one, the person is
available to that party and only [sic] and not the other; two, it
appears that the person has special information material to the
case; and, three, that the person’s testimony would not be merely
cumulative. Therefore, if you find these three factors present and
there’s no satisfactory explanation for the [Appellant]’s failure to
call that witness, you may infer, if you choose to do so, that the
testimony would have been unfavorable to [Appellant].
N.T. Trial (charge), 6/16/16, at 28.
Appellant contends there was no basis for the trial court to give the
above “missing witness” jury charge. Specifically, Appellant claims that it was
“questionable” as to whether “Terrance” or “T” was a witness only available to
him. Appellant’s Brief at 29; see also N.T. Trial (morning), 6/16/16, at 19-
20 (testimony of Appellant that he knew the area, but not the exact location,
of Terrance’s home). Because Appellant’s defense was that the drugs
belonged to Terrance, Appellant reasons that Terrance would not want to
appear in court to testify. Id.
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The Commonwealth counters by summarizing Appellant’s testimony that
Terrance kept his belongings at the apartment and that Terrance had a key.
Commonwealth’s Brief at 15-16. The Commonwealth emphasizes that the
drugs, according to Appellant, were in Terrance’s room. Id. at 16.
Our standard of review in assessing a trial court’s jury instruction
is as follows. When evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole, and not simply
isolated portions, to determine if the instructions were improper.
A trial court has broad discretion in phrasing its instructions, and
may choose its own wording so long as the law is clearly,
adequately, and accurately presented to the jury for its
consideration. Only where there is an abuse of discretion or an
inaccurate statement of the law is there reversible error.
Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017) (quotation
marks and citations omitted).
The missing witness adverse inference rule has been summarized
as follows:
When a potential witness is available to only one of the
parties to a trial, and it appears this witness has special
information material to the issue, and this person’s
testimony would not merely be cumulative, then if such
party does not produce the testimony of this witness, the
jury may draw an inference that it would have been
unfavorable.
This Court has delineated the circumstances which preclude
issuance of the instruction.
1. The witness is so hostile or prejudiced against the party
expected to call him that there is a small possibility of
obtaining unbiased truth;
2. The testimony of such a witness is comparatively
unimportant, cumulative, or inferior to that already
presented;
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3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party
failed to call such a witness;[8]
5. The witness is not available or not within the control of
the party against whom the negative inference is desired;
and
6. The testimony of the uncalled witness is not within the
scope of the natural interest of the party failing to produce
him.
Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999) (citations
omitted).9 “In other words, the inference is permitted only where the uncalled
witness is peculiarly within the reach and knowledge of only one of the
parties.” Bentivoglio v. Ralston, 288 A.2d 745, 748 (Pa. 1972).
“[F]ear of criminal punishment and the disgrace of conviction are strong
motivational factors for a criminal defendant to make certain that a witness
who can exonerate him appears at trial.” Commonwealth v. Dorman, 547
A.2d 757, 764 (Pa. Super. 1988). For example, in Commonwealth v.
Wright, 282 A.2d 323 (Pa. 1971), the defendant was accused of murder,
among other offenses. Id. at 323. The defendant testified in his own defense
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8Satisfactory explanations include illness, Commonwealth v. Johnson, 838
A.2d 663, 678 (Pa. 2003), and concern for the witness’s safety.
Commonwealth v. Jones, 637 A.2d 1001, 1005 (Pa. Super. 1994).
9 “The failure to produce evidence reflects on the credibility of the opposing
evidence but does not itself represent evidence that satisfies the burden of
production.” Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence §
427 (4th ed. 2013) (footnote to citations omitted).
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and stated that he was with four other people, but he did not call any of his
alibi witnesses. Id. at 324. The Pennsylvania Supreme Court was asked if “a
defendant raises an alibi and testifies as to the existence of named alibi
witnesses who know him personally, and if these witnesses are not called, is
it fair for the jury to infer that their testimony would be adverse to the
defendant?” Id. at 325. The Wright Court held that under these facts, the
Commonwealth was entitled to a missing witness instruction. The Court
acknowledged that “if the jury chooses to draw an adverse inference from a
defendant’s failure to call named alibi witnesses, his case may be affected
because his alibi is not believed. But the credibility of defendant’s testimony
is always something which he must consider before he takes the stand.” Id.10
Here, Appellant has failed to establish that the court should not issue
the instruction. See Boyle, 733 A.2d at 638. First, Terrance allegedly lived
at Appellant’s residence and Appellant had Terrance’s contact information.
See N.T. Trial (morning), 6/16/16, at 55. However, Appellant never
attempted to procure Terrance’s presence, whether voluntarily or via
subpoena. Second, although Appellant proffers a seemingly satisfactory
reason for not calling Terrance—specifically that Terrance would be admitting
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10The Wright Court, however, reversed and remanded for a new trial because
the trial court’s missing witness instruction was excessively “coercive.”
Wright, 282 A.2d at 326.
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to criminal conduct—that explanation is flawed. Appellant engages in self-
serving speculation that the drugs were, in fact, Terrance’s and that Terrance
would refuse to testify, rather than implicate Appellant.11 Given the
deferential abuse-of-discretion standard of review, we cannot say under the
unique circumstances of this case that the court erred. See Miller, 172 A.3d
at 645.12
Trial Court’s Supplemental Jury Charge
Before summarizing Appellant’s fourth argument, we set forth the
following as background. As the trial court accurately recounted, the jury
retired to deliberate and advised the court that it could not reach a verdict on
one count. Trial Ct. Op., 6/1/17, at 27-28. After the jury returned to the
courtroom, the court engaged the jury as follows:
The court: Okay. Now, with respect to that [deadlocked charge,]
is there some aspect of the instruction that I can assist with? Is
there some area of debate that pertains to the law that by giving
you some clarifying instruction that that will assist the jury? Or is
it just do people seem to have fixed opinions concerning the
factual basis as opposed to the legal issues?
The foreperson: No. It’s more of a fixed opinion.
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11We acknowledge the practical reality that even if Terrance appeared in
court, he would be unlikely to incriminate himself without immunity. But we
hesitate to unwaveringly accept Appellant’s unsubstantiated proffer that
Terrance would not testify that the drugs were his.
12 We note the trial court should, with great care, consider whether such an
instruction is necessary. Indeed, we would be remiss if we did not
acknowledge that the jury briefly deadlocked on the PWID charge.
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The court: Okay. Do you believe that there is some aspect that
can assist in breaking this deadlock, something that I can do to
assist in that regard?
The foreperson: No.
The court: No. You don’t believe so. Now, you understand that
you have a duty to consult with each other towards reaching a
verdict in the case, if it can be done without doing interference
with any of your individual judgment. In answer to your question
concerning whether you can return a verdict as to two counts, the
answer to that in a general sense is yes. However, with that said,
the district attorney and defense counsel will have -- and this
Court might not be able to -- well, let me rephrase it because I
want to be careful what I say. If you return a verdict on two of
the counts, there is some doubt as to whether the first count --
whether there can be another trial on the first count. Do you
understand what I’m saying? Generally speaking, that if there is
a mistrial in a case where the jury can’t reach a decision on any
of the counts, then the Commonwealth would be permitted,
generally speaking, to retry the case. However, that would
involve another jury like yourself and going through the same
protocol that we’ve gone through over the course of this trial.
Your situation is what I’ll call a hybrid situation, meaning that
you’ve reached a verdict on two of the counts but not the third
count. And there is some doubt as to whether or not the
Commonwealth would be able to retry Count Number 1 [i.e.,
PWID]. Do you understand?
The foreperson: Yes.
The court: Okay. Does everybody understand that?
(Whereupon the jurors shake their heads.)
The court: Let me ask the jurors, do any of you believe, and you
can raise your hands, that further deliberations would assist in
reaching a verdict in this case? Is there anybody – I’ll just ask it,
does anybody feel further deliberations will assist you in reaching
a verdict? If yes, raise your hand.
(No response.)
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The court: If no -- yes. Three jurors -- four jurors believe that
further deliberations might assist them in reaching a verdict. And
how many feel that no further deliberations will assist you in
reaching a verdict? Two. Okay. So it really is -- and other people
are undecided. Okay. So what I’m going to suggest is, and let
me read to you what you heard me say before, about you have a
duty to consult with each other and to deliberate towards reaching
an agreement if it can be done without doing any interference with
your individual judgment. Each juror must decide the case for
himself or herself, but only after there’s been impartial
consideration with his or her fellow jurors. In the course of
deliberations, a juror should not hesitate to reexamine his or her
views and change his or her opinion if convinced it is mistaken.
No juror, however, should surrender an honest conviction as to
the weight or effect of the evidence solely because of the opinion
of his or her fellow jurors or for the mere purpose of returning a
verdict. Keeping these instructions in mind, I’m going to send you
back to the jury deliberation room for additional further
deliberations. And if you reach the point where you don’t believe
that further deliberations will assist you, . . . you need to alert me
to that fact. So I’m going to send you out for additional
deliberations at this point. Before I do that, I’m going to see if
either counsel want to discuss this matter with me at sidebar.
[Appellant’s counsel]: What I care to discuss can be done after
the jury exits. . . .
(Whereupon the jury exited the courtroom at 5:27 p.m.) . . .
[Appellant’s counsel]: Judge, I’ll bring it up now. I would ask the
Court not to instruct the jury on things like a retrial or the options
that happen after that. I think it introduces into their deliberations
things that are not appropriate on the facts of the case.
The court: I understand. However, if you look at the procedure,
let me read to you -- just so that you know, I have my own
instructions, but it really mirrors what is in the standard
instructions. And it says the following. I’ll avoid making mention
of it. It is in my standard instructions. It’s not necessarily the
way it is specified in the standard jury instructions, but it’s
consistent, I think, with the case law and the ABA standards.
[Appellant’s counsel]: Thank you, Your Honor.
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N.T. Trial (charge), 6/16/16, at 59-63 (some capitalization omitted). As noted
above, the jury deliberated an additional half-hour and found Appellant guilty
on all charges.
Appellant contends the court erred when it issued supplemental
instructions after the jury stated they were at an impasse with respect to one
charge. Appellant’s Brief at 30-31. Specifically, Appellant disagrees with the
court’s comment that a mistrial on the PWID charge may not result in another
trial. Id. at 31. Appellant takes issues with the trial court’s conclusion that
he waived the issue by not objecting. Id.; see also Trial Ct. Op., 6/1/17, at
28. Appellant notes that counsel “brought the issue to the court’s attention
and indicated that such instructions were not appropriate.” Appellant’s Brief
at 32. Appellant construes the court’s comment as an impermissible “prod”
by the trial court to compel the jury to reach a unanimous verdict on that
count. Id.
As set forth above, the standard of review is abuse of discretion or error
of law. Miller, 172 A.3d at 645. Pennsylvania Rule of Criminal Procedure 647
provides:
(C) No portions of the charge nor omissions from the charge may
be assigned as error, unless specific objections are made thereto
before the jury retires to deliberate. All such objections shall be
made beyond the hearing of the jury.
(D) After the jury has retired to consider its verdict, additional or
correctional instructions may be given by the trial judge in the
presence of all parties, except that the defendant’s absence
without cause shall not preclude proceeding, as provided in Rule
602.
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Pa.R.Crim.P. 647(C)-(D). But a “specific and timely objection must be made
to preserve a challenge to a particular jury instruction.” Commonwealth v.
Moury, 992 A.2d 162, 178 (Pa. Super. 2010); accord Commonwealth v.
Hitcho, 123 A.3d 731, 756 (Pa. 2015).
Requiring a timely specific objection to be taken in the trial court
will ensure that the trial judge has a chance to correct alleged trial
errors. This opportunity to correct alleged errors at trial advances
the orderly and efficient use of our judicial resources. First,
appellate courts will not be required to expend time and energy
reviewing points on which no trial ruling has been made. Second,
the trial court may promptly correct the asserted error. With the
issue properly presented, the trial court is more likely to reach a
satisfactory result, thus obviating the need for appellate review on
this issue. Or if a new trial is necessary, it may be granted by the
trial court without subjecting both the litigants and the courts to
the expense and delay inherent in appellate review. Third,
appellate courts will be free to more expeditiously dispose of the
issues properly preserved for appeal. Finally, the exception
requirement will remove the advantage formerly enjoyed by the
unprepared trial lawyer who looked to the appellate court to
compensate for his trial omissions.
Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 116-17 (Pa. Super.
1974) (footnotes omitted).
Here, Appellant asked the trial court to not “instruct the jury on things
like a retrial or the options that happen after that.” N.T. Trial (charge),
6/16/16, at 62-63. Appellant briefly explained his belief that “it introduces
into their deliberations things that are not appropriate on the facts of the
case.” Id. at 63. We agree with the trial court that Appellant has not
established that either statement, or both read together, constitutes a specific
objection. See Trial Ct. Op. at 28; Moury, 992 A.2d at 178. We simply
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discern nothing in such statements that would have alerted the trial court that
it made an error such that the jury should be recalled from its deliberations.
See Moury, 992 A.2d at 178. For these reasons, Appellant has not
established entitlement to relief.
Challenge to Discretionary Aspects of Appellant’s Sentence
By way of background, the court ordered a pre-sentence investigation
report, but Appellant refused to cooperate. Thus, the report was prepared
without Appellant’s participation and was designated a “partial presentence
report.” N.T. Sentencing Hr’g, 12/12/16, at 23. At the sentencing hearing,
the trial court stated that it considered the sentencing guidelines, partial
presentence report, and nature and circumstances of Appellant’s crimes. Id.
at 22-23. The court discussed that the crimes occurred while Appellant was
on parole and his lengthy almost two-decade criminal history. Id. at 23-26.
Accordingly, the court concluded that a deviation from the sentencing
guidelines was warranted because Appellant was likely to reoffend. Id. at 26.
For his last issue, Appellant challenges the discretionary aspects of his
sentence. Specifically, Appellant contends his sentence was excessive as it
was double the standard range sentence and the court failed to sufficiently
justify such a sentence. Appellant’s Brief at 34. Appellant maintains that the
one reason the court gave—that Appellant was on parole at the time of the
underlying crimes—was “disingenuous as it failed to recognize” Appellant
would face a significant parole-revocation sentence. Id. at 35.
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In Commonwealth v. Luketic, 162 A.3d 1149 (Pa. Super. 2017), we
explained as follows:
A challenge to the discretionary aspects of a sentence is not
appealable as of right. Therefore, before we may exercise
jurisdiction to reach the merits of Appellant’s claim, we must verify
that Appellant’s appeal is properly before this Court—that is, that
his appeal was timely filed and that the issues he seeks to raise
were properly preserved. If so, we must then determine 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 pursuant to Appellate Rule 2119(f), and
whether that concise statement raises a substantial question that
the sentence is appropriate under the sentencing code. Only if
the appeal satisfies these requirements may we proceed to decide
the substantive merits of Appellant’s claim.
Id. at 1159-60 (citations, footnote, and most punctuation omitted).
Here, Appellant has timely appealed and filed a timely post-sentence
motion preserving his issue. See id. Appellant’s brief has also included a
one-sentence Rule 2119(f) statement, to which the Commonwealth did not
object. See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super.
2004).13 We turn to whether Appellant has presented a substantial question
that his sentence was inappropriate.
____________________________________________
13 It is well-settled that the Rule 2119(f) statement must comply with the
following:
[T]he Rule 2119(f) statement must specify where the sentence
falls in relation to the sentencing guidelines and what particular
provision of the Code is violated (e.g., the sentence is outside the
guidelines and the court did not offer any reasons either on the
record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must specify
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“A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Luketic, 162 A.3d at 1160 (citation omitted). A “contention that the
sentencing court exceeded the recommended range in the Sentencing
Guidelines without an adequate basis raises a substantial question for this
Court to review.” Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super.
2008). A manifestly excessive sentence also raises a substantial question,
even if the sentence is within the statutory limits. Commonwealth v.
Mouzon, 812 A.2d 617, 624 (Pa. 2002); Commonwealth v. Kelly, 33 A.3d
638, 640 (Pa. Super. 2011). Here, because Appellant has claimed that the
court imposed a sentence outside the Sentencing Guidelines without sufficient
justification, he has raised a substantial question that we review on the merits.
See Luketic, 162 A.3d at 1162.
Our standard of review follows: 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 order to establish that the sentencing court abused its
discretion, the defendant 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
____________________________________________
what fundamental norm the sentence violates and the manner in
which it violates that norm. . . .
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc).
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ill will, or arrived at a manifestly unreasonable decision. The
rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Id. at 1162-63 (citations, quotation marks, and brackets omitted). “Where
pre-sentence reports exist, we shall continue to presume that the sentencing
judge was aware of relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Here, as the trial court acknowledged, a presentence investigation
report exists, albeit it was prepared without Appellant’s cooperation. Trial Ct.
Op. at 18. The trial court also indicated it reviewed the sentencing guidelines
and considered the nature and circumstances of Appellant’s present and past
offenses, as well as the import of his parole status. N.T. Sentencing at 22-
26. Accordingly, we perceive no abuse of discretion by the trial court. See
Luketic, 162 A.3d at 1162-63. For these reasons, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/18
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Circulated 06/29/2018 05:07 PM