Com. v. Shepard, G. ( 2023 )

J-A11018-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERELL SHEPARD :
:
Appellant : No. 476 WDA 2022
Appeal from the Judgment of Sentence Entered January 11, 2022
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000724-2020
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 26, 2023
Appellant, Gerell Shepard, appeals from the aggregate judgment of
sentence of 10 to 42 years’ incarceration, imposed after a jury convicted him
of three counts of possession with intent to deliver a controlled substance
(PWID), 35 P.S. § 780-113(a)(30), and one count of criminal use of a
communication facility (CUCF), 18 Pa.C.S. § 7512(a). Appellant challenges
the sufficiency of the evidence to sustain his CUCF conviction, as well as the
discretionary aspects of his sentence. After careful review, we affirm.
The trial court summarized the facts and procedural history of
Appellant’s case, as follows:
On January 20, 2020, the Altoona Police Department and the
Office of the Attorney General filed a criminal complaint charging
[Appellant] with the following criminal offenses:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Corrupt Organizations, 18 Pa.C.S.[] § 911(b)(3); Corrupt
Organizations - Conspiracy, 18 Pa.C.S.[] § 911(b)(4); Criminal
Conspiracy [PWID], 18 P[a.C].S.[] § 903(a)(1); [PWID], 35 P.S.
[§] 780-113(a)(30) (4 counts); and [CUCF], 18 Pa.C.S.[] § 7512.
The charges arose from a statewide investigating grand jury.
Pertaining to the instant Appellant, the Grand Jury Presentment
alleged that co-defendants Shawn Jackson, Appellant, and Darwin
Herring, as well as … others[,] were part of a larger
methamphetamine distribution network, which operated in Blair
County from mid-2018 through October of 2019. The
Commonwealth alleged that these individuals conspired with each
other and others in this “business[.”] The Commonwealth
acknowledged that not all members participated during the entire
extent of the organization and that many moved in and out,
playing a particular role. The Commonwealth identified local
dealers, mid-level suppliers, and higher[-]level sources, as the
roles within the organization and identified both co-defendant
Herring and Appellant, as dealers for Jackson.
The criminal charges were waived to the Court of Common Pleas
from the magisterial district judge level on March 17, 2020. The
Attorney General filed a criminal information consistent with the
above[-]referenced charges on May 7, 2020. The Commonwealth
also provided notice pursuant to Rule 582(B) of the Pennsylvania
Rules of Criminal Procedure of its intent to try [Appellant’s] case
with seventeen (17) other defendants.
***
On December 8, 2020, the defense filed a motion to sever. The
court held an argument on March 12, 2021. At the time of oral
argument on the matter, the Commonwealth revised its notice of
joinder and represented to the court and defense counsel that it
would only seek to try … Appellant’s case with co-defendants …
Herring and … Jackson. The court also received from the
Commonwealth the Grand Jury Presentment in support of the
Commonwealth’s position that the cases of … Appellant, co-
defendant … Jackson, and co-defendant … Herring are related and
should be tried together. After considering the record and the
briefs filed by counsel, this court denied the motion to sever by
Opinion and Order dated April 26, 2021. As the time for trials
w[as] forthcoming and with the disposition of several co[-
]defendants’ cases through negotiated guilty pleas/sentences, the
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Commonwealth requested separate trials for [co-d]efendant
Herring and Appellant.
A jury trial commenced for … Appellant on October 20, 2021. At
the outset of trial, the Commonwealth withdr[e]w and amended
certain counts on the Criminal Information. The jury was asked
to determine whether Appellant was guilty of: Count 1 - [PWID]
(Methamphetamine) - June 2018 through October 2018; Count 2
- [PWID] (Methamphetamine) - November 3, 2018; Count 3 -
[PWID] (Fentanyl) - November 6, 2018; Count 4 - Delivery of a
Controlled Substance (Methamphetamine) - November 6, 2018;
Count 5 - Conspiracy to [commit PWID] (Methamphetamine and
Fentanyl) - June 2018 through November 6, 2018[;] Count 6 –
[CUCF] — June 2018 through November 6, 2018.1
1 Count 1 was primarily based upon historical information
from the Confidential Informant’s [(C.I.)] drug buys with the
Appellant, which occurred without police oversight and
involvement. Counts 2, 3, and 4 were based upon controlled
purchases alleged with the Appellant by the C.I. while the
C.I. was working with police. Counts 5 and 6 covered both
periods of time when the C.I. was allegedly independently
buying drugs and when the C.I. was doing so with police
involvement.
In support of its case, the Commonwealth presented the
testimony of the [C.I.], as well as law enforcement, who worked
with the C.I. The jury heard testimony about why the C.I. was
working with police and the procedures used by the police to
protect the integrity of the controlled purchases of drugs. The C.I.
explained the nature and type of communications she had with …
Appellant and co-defendant Jackson. The Commonwealth
submitted exhibits, including photographs taken by the police of
the electronic communications between … Appellant and the C.I.
The Affiant also explained to the jury the use of veiled language
when parties are engaged in the sale of illegal drugs. Other
Commonwealth evidence addressed the forensic identification and
weight of the drugs involved. … Appellant testified in his defense.
His defense centered around his promiscuity with women during
the time of the alleged drug buys. He denied the criminal activity
and attributed his interaction with the C.I. as a sexual relationship.
He described other interactions when she was helping him move.
He denied knowing co-defendant Jackson. Rebuttal evidence from
the Commonwealth was presented to show that the Appellant and
the co-defendant Jackson were “friends” on Facebook. …
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Appellant further denied the significance of … Jackson[’s] being
listed as a “friend” on Facebook.
On October 22, 2021, … Appellant was found guilty by a jury of:
Count 2 – [PWID] (Methamphetamine) - November 3, 2018;
Count 3 - [PWID] (Fentanyl) - November 6, 2018;
Count 4 – [PWID] (Methamphetamine) - November 6, 2018;
Count 6 – [CUCF] - June 2018 through November 6, 2018.
… Appellant was found not guilty of: Count 1 [- PWID]
(Methamphetamine) - June 2018 through October 2018; and
Count 5 - Conspiracy to [commit PWID] (Methamphetamine and
Fentanyl) – June 2018 through November 6, 2018.
Following his convictions, the court ordered a pre[-]sentence
investigation[,] the submission of sentencing memoranda, and set
sentencing to occur on January 11, 2022. At the sentencing
hearing, the Commonwealth and the defense presented
arguments. … Appellant also testified and submitted documents.
After considering the presentations, the sentencing memoranda,
the trial record, the amended pre-sentence investigation and all
mitigating information, the court imposed consecutive[,] middle[-
]of[-]the[-]standard[-]range sentences on each count.
Trial Court Opinion (TCO), 8/30/22, at 1-5 (some spacing altered and
unnecessary capitalization omitted).
As stated supra, the court imposed an aggregate term of 10 to 42 years’
incarceration. Appellant filed a timely post-sentence motion, requesting
reconsideration of his sentence.1 The trial court denied the post-sentence
____________________________________________
1 We note that the trial court’s docket did not originally contain an entry for a
post-sentence motion and, therefore, Appellant’s notice of appeal appeared to
be facially untimely, as it was filed more than 30 days after the imposition of
his sentence. See Pa.R.Crim.P. 720(A)(3) (“If the defendant does not file a
timely post-sentence motion, the defendant’s notice of appeal shall be filed
within 30 days of imposition of sentence….”). Accordingly, by Order dated
(Footnote Continued Next Page)
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motion on March 16, 2022. Appellant filed a timely notice of appeal on April
14, 2022. He thereafter complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and the trial
court filed its Rule 1925(a) opinion on August 30, 2022.
Herein, Appellant states two issues for our review:
I. Did the Commonwealth adduce sufficient evidence to prove the
requisite mens rea for Count 6, [CUCF]?
II. Did the trial court abuse its discretion by imposing an unduly
harsh, excessive, and unreasonable sentence of 10 to 42 years’
imprisonment, which was incongruent with the conduct for which
[Appellant] was convicted…, and … constituted a statutory
maximum sentence that did not comport with the trial court’s
stated purpose of lengthy supervision?
Appellant’s Brief at 5 (emphasis omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
conviction of CUCF, which is defined as follows:
(a) Offense defined.--A person commits a felony of the third
degree if that person uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under the act
of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act. Every instance where
____________________________________________
May 16, 2022, this Court directed Appellant to show cause as to why the
instant appeal should not be quashed as untimely. Appellant filed a timely
response, wherein he attached a copy of a post-sentence motion that was
time-stamped by the Blair County Clerk of Courts on January 19, 2022 - within
10 days of the imposition of sentence. By order dated May 19, 2022, this
Court directed the trial court to amend its docket to include an entry for the
January 19, 2022 post-sentence motion. The trial court’s docket has now
been amended. This Court’s show-cause order was subsequently discharged.
As the post-sentence motion was timely filed within 10 days of the imposition
of sentence, the appeal period was tolled.
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the communication facility is utilized constitutes a separate
offense under this section.
18 Pa.C.S. § 7512(a) (footnote omitted). This Court has recognized that
“[f]acilitation has been defined as ‘any use of a communication facility that
makes easier the commission of the underlying felony.’” Commonwealth v.
Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (quoting United States v. Davis,
929 F.2d 554, 559 (10th Cir. 1991)).
Here, Appellant insists that the Commonwealth failed to present
sufficient evidence to prove the facilitation element of CUCF. Specifically, he
avers that there was no evidence establishing that he “made the delivery of
narcotics ‘easier’ through the use of a messaging app on his cell phone.”
Appellant’s Brief at 41. Appellant posits that “the context of the existing
relationship between [him] and [the CI]” supports that the two were
communicating for and about matters other than the drug deliveries. Id. He
also stresses that “any veiled references to narcotics were solely initiated by
[the C.I.] and [Appellant] either did not reply or replied in non-adoptive
terms.” Id. According to Appellant,
[t]he conversations – which is a generous term to apply to the
broken strings of messages – do not establish that the two were
arranging narcotics sales. The messages are more indicative of
mindless interaction between two familiar parties, ancillary to any
narcotics sales. A common-sense reading of the messages shows
this – rides, moving, selfies, and emojis, which are not the
hallmarks of messages hammering out the logistics of a drug deal.
Falling short of the facts in [United States v.] Wheat[, 988 F.3d
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299 (6th Cir. 2021),2] the discussions between [the C.I.] and
[Appellant] did not come close to facilitating the deliveries.
Id. (emphasis in original).
We disagree with Appellant’s argument. Initially, we observe that,
[w]hether the evidence was sufficient to sustain the charge
presents a question of law. Commonwealth v. Toritto, 67 A.3d
29 (Pa. Super. 2013) (en banc). Our standard of review is de
novo, and our scope of review is plenary. Commonwealth v.
Walls, 144 A.3d 926 (Pa. Super. 2016). In conducting our
inquiry, we examine[,]
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable
to the Commonwealth as verdict-winner, [is] sufficient to
establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the
evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts
regarding a defendant’s guilt unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. When
evaluating the credibility and weight of the evidence, the
fact-finder is free to believe all, part or none of the evidence.
For purposes of our review under these principles, we must
review the entire record and consider all of the evidence
introduced.
____________________________________________
2 In Wheat, the appellant
sent his phone number to [a large-scale drug-dealer named]
Reels[,] and later spoke with Reels over the phone the night
before their exchange of [a] heroin sample. During the call,
Wheat alerted Reels of the heroin that he had come across and
arranged for a meeting with Reels to exchange that sample.
Wheat, 988 F.3d at 313. Based on this evidence, the court found that “Wheat
knowingly used his phone to make it easier to distribute the sample to Reels.”
Id.
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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.
2014) (quotation omitted).
Commonwealth v. Rojas-Rolon, 256 A.3d 432, 436 (Pa. Super. 2021),
appeal denied, 285 A.3d 879 (Pa. 2022).
Here, the trial court found sufficient evidence to prove that Appellant
committed the crime of CUCF, explaining:
Under the Commonwealth’s theory of the instant case, …
Appellant used his cell phone to contact the [C.I.] to arrange
deliveries of methamphetamine and fentanyl between the summer
of 2018 through November 6, 2018. The Commonwealth charged
one count for the entire timeframe. In support of this theory, the
Commonwealth presented the testimony of … the [C.I. She]
testified that she was addicted to drugs, particularly
methamphetamine.2 It is a battle she “fights every day[.”] ([N.T.
Trial,] 10/20/21[, at] 92-93). [The C.I.] told the jury about coded
text messages and described the transactions, exchanging money
for drugs. ([See, e.g., id. at] 112-[]15, 123-[]35)[.] She further
told the jury about communications with the co-defendant Jackson
and her knowledge of the relationship between Jackson and …
Appellant based upon the circumstances of her receipt of drugs
and the payment of money. ([Id. at] 112-[]13). She advised the
jury that co[-]defendant Jackson directed her to deal with …
Appellant in his absence. ([Id. at] 99). [The C.I.] explained that
she would communicate by Facebook, text message or telephone
calls with Appellant. ([Id. at] 99). She described the content of
certain messages between [she] and … Appellant. ([See, e.g.,
id. at] 115, 122-[]23, 124-[]25, 126, 130-[]31).
2 The jury heard that [the C.I.] bought drugs from …
Appellant and co-defendant Jackson from the summer of
2018 through October of 2018 when she began making
controlled purchases for the police. She was charged $100
to $150 per gram and the drugs she received had the same
effect on her body as the drugs she had used over the years.
([Id. at] 100-[]01, 146). The jury did not convict ...
Appellant of buys for that time frame, however.
The Commonwealth also admitted exhibits of the electronic
messages. For instance, Commonwealth Exhibit #10 was alleged
to be a text conversation between Appellant and the C.I. on
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November 3rd wherein Appellant stated: “150, I can’t go lower.”
Additionally, [the C.I.] testified that this message was …
Appellant’s response to her inquiry about a lower price. ([Id. at]
130-[]31). [The C.I.] told the jury that she paid co-defendant
Jackson for drugs, but got drugs from … Appellant on November
3rd. ([Id. at] 145). Sergeant Moser identified the photographs
he took of conversations between the C.I. and … Appellant,
including those relating to November 3rd and the $150 price.
([N.T. Trial,] 10/21/21[, at] 97). The jury convicted … Appellant
at Count 2 for delivery of methamphetamine on November 3rd.
Commonwealth Exhibit #17 was another alleged conversation
between Appellant and the C.I. referencing the “G” and “2 BGS.”
[The C.I.] told the jury that the purpose of the electronic contact
was because … Appellant had methamphetamine available. She
again identified pictures from her cell phone taken by Sgt. Moser
at the time of the controlled buy, documenting communications
between her and … Appellant. She testified that she spoke to …
Appellant on the phone in the presence of the police and that they
exchanged electronic messages. She identified a message where
she said “the same as the last time, then” to … Appellant about
arranging a drug transaction for a gram. Appellant and the C.I.
[went] on to discuss where … Appellant [was] located and the
purchase of a gram of methamphetamine and two bags of heroin.
([N.T. Trial,] 10/20/21[, at] 136-[]39). She [was] directed to a
location by … Appellant and [gave] him $190 for one gram of
methamphetamine and two bags of heroin. ([Id. at] 141-[]43,
146). Sgt. Moser was qualified as an expert witness in narcotics
investigations[.] ([Id. at] 42, 44). He testified that he took
photographs of the C.I.[’]s phone and the communications
between the [C.I.] and Appellant. He identified the conversation
occurring over Facebook[.] ([N.T. Trial,] 10/21/21[, at] 106-
[]07). Sgt. Moser told the jury that based upon his training and
experience, the [“]G[”] referred to a gram and the [“]2 BGS[”]
meant bags of heroin[.] ([Id. at] 107). As it relates [to] these
communications, the jury convicted [Appellant] of delivery of
methamphetamine and fentanyl on November 6th.
***
Because the Commonwealth charged and alleged a continuing
count of [CUCF], it was not necessary for the jury to determine if
each text the Commonwealth presented throughout its case arose
to the commission of the crime. It was only necessary for the jury
to believe that at least on one occasion[,] … Appellant had used a
communication device to facilitate a delivery of drugs. According
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to the verdict slip, the jury concluded that[,] at least on two
occasions (November 3rd and November 6th)[,] … Appellant had
arranged for the deliveries of drugs to the C.I. The afore-listed
examples of electronic communications are sufficient evidence for
the jury to find beyond a reasonable doubt that Appellant
possessed sufficient mens rea to be guilty of [CUCF]. Based upon
the above evidence and the reasonable inferences from that
evidence, the jury reasonably [and] properly concluded that …
Appellant had the mens rea of intentionally, knowingly, or
recklessly using a communication device to arrange deliveries of
controlled substances.
TCO at 8-10 (unnecessary capitalization omitted).
The record supports the court’s decision, and confirms that the
Commonwealth presented sufficient evidence to prove that Appellant used an
electronic device to facilitate – or make easier – his delivery of drugs to the
C.I. Appellant and the C.I. exchanged messages on their phones about the
availability, pricing, and quantities of drugs that the C.I. wished to purchase
from Appellant. Appellant also used his phone to tell the C.I. his location,
where she then met him and completed the drug transaction. Clearly, this
evidence demonstrates that Appellant used an electronic device to facilitate
the commission of his drug deliveries to the C.I. Thus, no relief is due on his
first issue.
In Appellant’s second issue, he challenges the discretionary aspects of
his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
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We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, … 909 A.2d 303 ([Pa.] 2006). Objections to the
discretionary aspects of a sentence are generally waived if they
are not raised at the sentencing hearing or in a motion to modify
the sentence imposed. Commonwealth v. Mann, 820 A.2d 788,
794 (Pa. Super. 2003), appeal denied, … 831 A.2d 599 ([Pa.]
2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Instantly, Appellant has presented a Rule 2119(f) statement in his brief
in which he argues that “the trial court imposed a statutory maximum
sentence without making any connection between its stated purpose for the
sentence and why such a sentence was necessary for Appellant.” Appellant’s
Brief at 34 (emphasis and citations omitted). Appellant stresses that he
was convicted of, namely, two relatively minor drug deliveries.
His conduct, by the trial court’s own description, was less severe
than that of many other individuals charged in [the] larger drug[-
]distribution ring. Moreover, [Appellant] was acquitted of
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involvement in that ring and of conspiring to distribute narcotics
with Jackson.
Id. Appellant posits that these claims raise substantial questions for our
review. Id. (citing Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super.
2002) (“A claim that the sentencing court imposed an unreasonable sentence
by sentencing outside the guideline ranges presents a ‘substantial question’
for [] review.”); Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super.
1999) (en banc) (“An allegation that the sentencing court did not adequately
set forth its reasons on the record does present a substantial question.”)).
Initially, at no point at the sentencing proceeding, in Appellant’s post-
sentence motion, or in the memorandum accompanying his motion, did he
argue that the court failed to state sufficient reasons on the record for the
sentence it imposed. Accordingly, this claim is waived. See Griffin, 65 A.3d
at 936 (“[I]ssues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.”) (citation omitted).
In Appellant’s post-sentence motion, he argued that his sentence “is
unduly harsh given [his] circumstances” and that the court’s imposition of
consecutive sentences “does not take into consideration the rehabilitative
needs of [Appellant].” Post-Sentence Motion, 1/19/22, at 2 (unnumbered).
In his memorandum accompanying the motion, Appellant elaborated on his
circumstances and rehabilitative efforts that he believes warrant a more
lenient sentence. See Memorandum In Support of Post-Sentence Motion,
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2/23/22, at 2 (unnumbered). He also noted several factors that he alleged
the court improperly considered, such as the fact that several of his prior
arrests “resulted in charges being dismissed or in [Appellant’s] being found
not guilty.” Id.Thus, the only argument that Appellant preserved for our review in his
post-sentence motion, and which he meaningfully develops in the Argument
section of his brief, is his claim that the trial court’s imposition of consecutive
sentences resulted in an aggregate term that is unduly harsh, considering the
circumstances of the case and Appellant’s rehabilitative needs and efforts.3
We conclude that this claim raises a substantial question for our review. See
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“[W]e
conclude that [the 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 and mitigating factors upon fashioning its
sentence, presents a substantial question.”).
In reviewing the merits of Appellant’s sentencing challenge, we are
mindful that,
____________________________________________
3 Appellant also argues, in his appellate brief, that the court abused its
discretion by imposing a maximum sentence of 42 years’ incarceration based
on its intent that Appellant serve a “long tail of parole.” Appellant’s Brief at
51. He insists that the court failed to appreciate that Appellant “will not
necessarily be paroled” and could ultimately serve the entire, maximum
sentence of 42 years’ incarceration in prison. Id. This argument was not set
forth in Appellant’s post-sentence motion, or his memorandum in support
thereof. Accordingly, it is waived. See Griffin, supra.
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[s]entencing 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.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
In the instant case, Appellant presents the following argument:
Here, the trial court imposed an aggregate sentence of 10 to 42
years’ imprisonment. This sentence was manifestly excessive and
clearly unreasonable. [Appellant] was convicted of delivering
controlled substances that first consisted of 7.17 grams of
methamphetamine, then .79 grams of methamphetamine and .08
grams of fentanyl. [Appellant] does not downplay the seriousness
of delivering controlled substances, but he stresses that the
circumstances of the offenses here clearly do not justify a four-
decades-long sentence of confinement.
[Appellant] put on evidence at sentencing showing that he had
established a consistent, full-time job, and he was doing well in
the community. He explained to the trial court that he was
working to support his own children and the children of his
partner. The trial court was made aware that [Appellant] had a
troubled past and challenging childhood—an explanation but not
an excuse for his criminal history. [Appellant] presented to the
trial court numerous letters from friends and coworkers explaining
that he was doing well in the community and was a good person.
One even came from the probation officer supervising him on
post-trial release. Still, the trial court was unpersuaded and
focused on the seriousness of his current charges and the
protection of the public based upon his criminal history. The
sentence was focused on conduct and not personal history, thus
being far from individualized.
The trial court imposed sentences at each of the four counts that
had minimum terms in the standard range, but extended to the
statutory maximum at each offense. In doing so, the trial court
created the distinct possibility that [Appellant] will serve 42 years
of imprisonment in connection with two, relatively minor, drug
deliveries.
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Appellant’s Brief at 48-50.
In assessing Appellant’s arguments, we have reviewed the certified
record, the briefs of the parties, and the applicable law. We have also
considered the detailed and well-reasoned opinion of the Honorable Jackie
Atherton Bernard of the Court of Common Pleas of Blair County. See TCO at
11-16. We conclude that Judge Bernard’s discussion of her sentencing
considerations and rationale refutes Appellant’s arguments that the court did
not impose an individualized sentence or consider the circumstances of his
case and his rehabilitative needs and efforts. Based on Judge Bernard’s
opinion and the record before us, we discern no abuse of discretion in
Appellant’s sentence. Thus, we adopt Judge Bernard’s decision addressing
Appellant’s sentencing challenge as our own and affirm the judgment of
sentence for the reasons set forth therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2023
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Circulated 06/14/2023 07:41 AM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
NO. 2020 CR 724
vs.
GERELL SHEPARD,
Defendant
' )
HON. JACKIE ATHERTON BERNARD PRESIDING JUDGE
MICHAEL T. MADEIRA, ESQUIRE SR. DEPUTY ATTORNEY GENERAL
RYAN H. JAMES, ESQUIRE COUNSEL FOR DEFENDANT
• Date: August 29, 2022
OPINION PURSUANT TO RULE 1925(a) OF THE PA
RULES OF APPELLATE PROCEDURE
This Opinion is issued by the Court following the Defendant-Appellant's
(hereinafter Appellant) Statement of Errors. Gerell Shepard, Appellant, appeals from
the judgment of sentence entered on January 11, 2022, following jury convictions.
PROCEDURAL HISTORYIFACTUAL HISTORY
On January 20, 2020, the Altoona Police Department and the Office of the
Attorney General filed a Criminal Complaint charging the Defendant with the following
Criminal Offenses:
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Corrupt Organizations, 18 Pa.C.S.A. §911(b)(3); Corrupt Organizations-
Conspiraci
Conspiracy, 18 Pa.C.S.A. §911(b)(4); Criminal Possession with Intent to
Deliver, 18 P .S.A. §903(a)(1 ); Possession with Intent to Deliver, 35 P .S. 780-113(a)(30)
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(4 counts); and Criminal Use of a Communication Facility, 18 Pa.C.S.A. §7512.
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The charges arose from a statewide investigating grand jury. Pertaining to the
instant Appellant, the Grand Jury Presentment alleged that that Co-Defendants Shawn
Jackson, Appellant, and Darwin Herring, as well as, others were part of a larger
methamphetamine distribution network, which operated in Blair County from mid-2018
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through October of 2019. The Commonwealth alleged that these individuals conspired
with each other and others in this "business". The Commonwealth acknowledged that
not all members participated during the entire extent of the organization and that many
moved in and out, playing a particular role. The Commonwealth identified local dealers,
mid-level suppliers, and higher level sources, as the roles within the organization and
identified both Co-Defendant Herring and Appellant, as dealers for Jackson.
The Criminal charges were waived to the Court of Common Pleas from the
magisterial district judge level on March 17, 2020. The Attorney General filed a Criminal
Information consistent with the above referenced charges on May 7, 2020. The
Commonwealth also provided notice pursuant to Rule 582(8) of the Pennsylvania Rules
of Criminal Procedure of its intent to try the Defendant's case with seventeen (17) other
defendants. Those individuals included: Adrian Speedwell, CR 45-2020; Carlos
Custalow, CR 725-2020; Kahil Graham, CR 561-2020; Elroy Wise, CR 440-2020;
Shawn Jackson, CR 267-2020; Ricardo Cade, CR 46-2020; Darwin Herring, CR 722-
2020; Kimberly Riggleman, CR 439-2020; Terry Bookwalter, CR 721-2020; Troy Hicks,
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CR 723-2020; Jenna Raia, CR 436-2020; Mark Watson, CR 1241-2020; Aleeta Queen-
Dively, CR 773-2020; William Snyder, CR 438-2020; Barbara Bordell, CR 437-2020;
Nicole Merkerson-Beale, CR 560-2020; Mark Anthony Watson, Jr., CR 1241-2020.
On December 8, 2020, the Defense filed a Motion to Sever. The Court held an
Arf
argument on March 12, 2021. At the time of Oral ument on the matter, the
Commonwealth revised its notice of joinder and represented to the Court and defense
counsel that it would only seek to try the Appellant's case with Co-Defendants Darwin
Herring and Shawn Jackson. The Court also received from the Commonwealth the
Grand Jury Presentment in support of the Commonwealth's position that the cases of
the instant Appellant, Co-Defendant Shawn Jackson, and Co-Defendant Darwin Herring
are related and should be tried together. After considering the record and the briefs
filed by counsel, this Court denied the Motion to Sever by Opinion and Order dated April
26, 2021. As the time for trials were forthcoming and with the disposition of several co-
defendants' cases through negotiated guilty pleas/sentences, the Commonwealth
requested separate trials for Defendant Herring and Appellant.
A jury trial commenced for the instant Appellant on October 20, 2021. At the
outset of trial, the Commonwealth withdraw and amended certain counts on the Criminal
Information. The jury was asked to determine whether Appellant was guilty of: Count
1-Delivery of a Controlled Substance (Methamphetamine) - June 2018 through October
2018; Count 2- Delivery of a Controlled Substance (Methamphetamine) -- November
3, 2018;
Count 3- Delivery of a Controlled Substance (Fentanyl) -- November 6, 2018; Count 4
- Delivery of a Controlled Substance (Methamphetamine) -- November 6, 2018; Count
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5- Conspiracy to Deliver a Controlled Substance (Metharnphetamine and Fentanyl) -
June 2018 through November 6, 2018. Count 6- Criminal Use of a Communications
Facility- June 2018 through November 6, 2018.1
In support of its case, the Commonwealth presented the testimony of the
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Confidential Informant, as well as law enforcement, who worked with the C.I. The Jury
heard testimony about why the C.I. was working with police and the procedures used
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by the police to protect the integrity of the controlled purchases of drugs. The C.I.
explained the nature and type of communications she had with the Appellant and Co-
Defendant Jackson. The Commonwealth submitted exhibits, including photographs
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taken by the police of the electronic communications between the Appellant and the C.I.
The Affiant also explained to the Jury the use of veiled language when parties are
engaged in the sale of illegal drugs. Other Commonwealth evidence addressed the
forensic identification and weight of the drugs involved. The Appellant testified in his
defense. His defense centered around his promiscuity with women during the time of
the alleged drug buys. He denied the criminal activity and attributed his interaction with
the C.I. as a sexual relationship. He described other interactions when she was helping
him move. He denied knowing Co-Defendant Jackson. Rebuttal evidence from the
Commonwealth was presented to show that the Appellant and the Co-Defendant
Jackson were "friends" on Facebook. The Appellant further denied the significance of
Co-Jackson, being listed as a "friend" on Facebook.
Count 1 was primarily based upon historical information from the Confidential Informant's drug buys with the
Appellant, which occurred without police oversight and Involvement. Counts 2, 3, and 4 were based upon
controlled purchases alleged with the Appellant by the C.I. while the C.I. was working with police. Counts 5 and 6
covered both periods of time when the C.I. was allegedly independently buying drugs and when the C.I. was
doing so with police involvement.
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On October 22, 2021, the Appellant was found guil, by a jury of:
Count 2- Delivery of a Controlled Substance (Methamphetamine)- November 3, 2018;
Count 3- Delivery of a Controlled Substance (Fentanyl) - �ovember 6, 2018;
{MethamphetJmine)
Count 4-Delivery of a Controlled Substance - November 6, 2018;
Count 6 - Criminal Use of a Communications Facility -- June 2018 through November
6, 2018. The Appellant was found not guilty of: Count 1 Delivery of a Controlled
Substance (Methamphetamine) -- June 2018 through October 2018; and Count 5 -
Conspiracy to Deliver a Controlled Substance (Methamphetamine and Fentanyl) -- June
2018 through November 6, 2018.
Following his convictions, the Court ordered a presentence investigation; the
submission of sentencing memoranda, and set sentencing to occur on January 11,
2022. At the sentencing hearing, the Commonwealth and the defense presented
arguments. The Appellant also testified and submitted documents. After considering the
presentations, the sentencing memoranda, the trial record, the amended pre-sentence
investigation and all mitigating information, the Court imposed consecutive middle of
the standard range sentences on each count.
ISSUES PRESENTED FOR APPEAL
The Court's interpretation of the Statement of Errors filed by the defense, are as
follows:
1. Whether the record supported the jury's verdict that the requisite mens rea for
Count 6, Criminal Use of Communication facility was established beyond a
reasonable doubt?
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Suggested Answer: In the Affirmative. There was ample evidence in the
record to support the jury's verdict that Appellant knowingly, intelligently or
recklessly used a communication device to facilitate the delivery of a controlled
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substance.
2. Whether the aggregate sentence imposed was in accordance with the law and
within the Court's discretion?
Suggested Answer: In the Affirmative. The Court properly exercised its
discretion, taking into account the record of the trial, the sentencing guidelines,
the PSI, the sentencing code, presentations made on behalf of the Appellant and
all mitigating factors and the rehabilitative potential for the Appellant, as well as,
the need to protect society.
DISCUSSION
I. The record supported the Jury's conclusion that the Defendant had the
requisite mens rea to commit the crime of Criminal Use of
Communication Facility.
Pursuant to Section 7512 of Title 18, the crime of Criminal Use Communication
Facility requires the Commonwealth to prove beyond a reasonable doubt: that the
defendant intentionally, knowingly, or recklessly used a communication facility; that the
defendant intentionally, knowingly, or recklessly used the communication facility to
facilitate the commission of the crime of Possession with Intent to Deliver a Controlled
Substance; and finally, that the crime of Possession with Intent to Deliver actually
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occurred. In the closing charge, the Jury was instructed, consistent with the Standard
Jury Instruction 15.7512 on the above elements and the definition of a communication
facility being: a public or private instrumentality used or useful in the transmission of
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signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in
whole or in part, including, but not limited to, telephone, wire, radio, electromagnetic,
photo-electronic, or photo-optical systems or the mail. This closing instruction also
included legal definitions for the mens rea terms of intentional, knowingly, and
recklessly. (T.T. 10/22/21 at p. 4647). This Jurist told the jury:
A defendant acts intentionally when it is his conscious object to facilitate the
commission of the crime charged by using the communication facility. A defendant
acts knowingly when he is aware that it is practically certain that his use of a
communication facility will facilitate the commission of the crime charged and fourth,
the defendant acts recklessly when he consciously disregards a substantial and
unjustifiable risk that his use of the communication facility will, in fact, facilitate the
commission of the crime charged. (T.T. 10/22/21 at p. 47, I. 14-22).
The appellate courts have held that evidence was sufficient to support a
defendant's conviction for Criminal Use of a Communication Facility, when the
defendant engaged in several telephone conversations with a confidential informant
and the conversations led to a controlled buy of drugs between the defendant and the
confidential informant. See Commonwealth v Moss, 852 A.2d 374 (Pa. Super 2004)
(further stating that mens rea requirement applied to each material element of the
offense and also overturning a conviction under Section 7512 where there was no
evidence to establish that the delivery of drugs actually occurred between the defendant
and his supplier).
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Under the Commonwealth's theory of the instant case, the Appellant used his
cell phone to contact the Confidential Informant �o arrange deliveries of
methamphetamine and fentanyl between the summer of 2018 through November 6,
2018. The Commonwealth charged one count for the entire timeframe. In support of this
theory, the Commonwealth presented the testimony of Tiffany lraca, the Confidential
Informant. Ms. lraca testified that she was addicted to drugs, particularly
methamphetamine.2 It is a battle she "fights every day". (T.T. 10/20/21 p. 92-93). Ms.
lraca told the jury about coded text messages and described the transactions,
exchanging money for drugs. (In example, T.T. 10/20/21 p. 112-115, 123-135) She
further told the jury about communications with the Co-Defendant Jackson and her
knowledge of the relationship between Jackson and the Appellant based upon the
circumstances of her receipt of drugs and the payment of money. (T.T. 10/20/21 p.112-
113). She advised the jury that Co Defendant Jackson directed her to deal with the
Appellant in his absence. (T.T. 1/20/21 p. 99). Ms. lraca explained that she would
communicate by Facebook, text message or telephone calls with Appellant. (T.T.
10/20/21 p. 99). She described the content of certain messages between her and the
Appellant. (For instance, T.T. 10/20/21 p. 115, 122-123, 124-125, 126, 130-131).
The Commonwealth also admitted exhibits of the electronic messages. For
instance, Commonwealth Exhibit #10 was alleged to be a text conversation between
Appellant and the C.I. on November 3"° wherein Appellant stated: "150, I can't go lower."
'The jury heard that Ms. lraca bought drugs from the Appellant and Co-Defendant Jackson from the summer of
2018 through October of 2018 when she began making controlled purchases for the police. She was charged
$100 to $150 per gram and the drugs she received had the same effect on her body as the drugs she had used
over the years. (T.T. 10/20/21 p. 100-101, 146). The Jury did not convict the Appellant of buys for that time
frame, however.
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Additionally, Ms. lraca testified that this message was the Appellant's response to her
inquiry about a lower price. (T.T. 10/20/21 p. 130-131). Ms. lraca told the jury that she
paid Co-Defendant Jackson for drugs, but got drugs from the Appellant on November
3rd. (T.T. 10/20/21 p. 145). Sergeant Moser identified the photographs he took of
conversations between the C.I. and the Appellant, including those relating to November
3rd and the $150 price (T.T. 10/21/21 p. 97). The jury convicted the Appellant at Count
2for delivery of methamphetamine on November 3rd. Commonwealth Exhibit #17 was
another alleged conversation between Appellant and the C.I. referencing the "G" and "2
BGS." Ms. lraca told the jury that the purpose of the electronic contact was because
the Appellant had methamphetamine available. She again Identified pictures from her
cell phone taken by Sgt. Moser at the time of the controlled buy, documenting
communications between her and the Appellant. She testified that she spoke to the
Appellant on the phone in the presence of the police and that they exchanged electronic
messages. She identified a message where she said ''the same as the last time, then"
to the Appellant about arranging a drug transaction for a gram. Appellant and the C.I.
go on to discuss where the Appellant is located and the purchase of a gram of
methamphetamine and two bags of heroin. (T.T. 10/20/21 p. 136-139). She is directed
to a location by the Appellant and gives him $190 for one gram of methamphetamine
and two bags of heroin. (T.T. 10/20/21 p. 141- 143, 146). Sgt. Moser was qualified as
an expert witness in narcotics investigations (T.T. 10/20/21 p. 42, 44). He testified that
he took photographs of the C.l.s phone and the communications between the Cl and
Appellant. He identified the conversation occurring over Facebook (T.T. 10/21/21 p.
106-107). Sgt. Moser told the jury that based upon his training and experience, the G
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referred to a gram and the 2 BGS meant bags of heroin (T.T. 10/21/21 p. 107). As it
relates these communications, the Jury convicted the I Defendant of delivery of
methamphetamine and fentanyl on November 6t
This Court believes that the defense argument may be based upon the testimony
of the C.I. about text messages between the Appellant and her discussing "clothes".
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These references have common meanings in addition to any illicit or ulterior meaning
Howevbr,
attributed to them by the C.I. and Sgt. Moser. this defense argument
completely ignores the conversations detailed previously. I
Because the Commonwealth charged and alleged a continuing count of Criminal
Use of a Communication Facility, it was not necessary for the Jury to determine if each
text the Commonwealth presented throughout its case arose to the commission of the
crime. It was only necessary for the Jury to believe that at least on one occasion the
Appellant had used a communication device to facilitate a delivery of drugs. According
to the verdict slip, the Jury concluded that at least on two occasions (November 3rd and
November 6th) the Appellant had arranged for the deliveries of drugs to the C.I. The
afore-listed examples of electronic communications are sufficient evidence for the Jury
to find beyond a reasonable doubt that Appellant possessed sufficient mens rea to be
guilty of Criminal Use of a Communication Facility. Based upon the above evidence and
the reasonable inferences from that evidence, the jury reasonably properly concluded
that the Appellant had the mens rea of intentionally, knowingly, or recklessly using a
communication device to arrange deliveries of controlled substances.
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II. The aggregate sentence imposed was in accordance with the law and
within the court's discretion
1
In the Statement of Errors, the Defense alleges as follows:
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Pennsylvania law makes clear that a minimum sentence serves as a guide to the
earliest potential release date. The punishment imposed is the maximum period
of confinement. The Commonwealth sought a sentence of 11.25 to 25 years'
imprisonment, and the Court imposed a sentence of 10 to 42 years. In doing so,
the Court expressed that it was "deviating" from the Commonwealth's
recommendation, and it believed the sentence to be "appropriate" in relation to
the Appellant's charged co-conspirator, who received ' 15 to 30 years'
imprisonment but ''who had a much larger role in the distribution of
methamphetamine." The Court, therefore, sentenced with a focus to the
minimum sentence imposed, believing it was imposing a more lenient sentence,
one ''with a long tail of parole." The Court's consecutive sentencing scheme,
however, was incongruent with the conduct of conviction -- a mere two drug
deliveries resulting in the distribution of 7. 8 grams of methamphetamine and 4.08
grams offentany/. (Emphasis added)
Consequently, was the Court's sentence "unduly harsh," excessive, and
unreasonable?
Under Pennsylvania Law, the sentencing Court is vested with sound discretion
to render judgment and this judgment will not be disturbed absent an abuse of
discretion. Commonwealth v. Sharp, 792 A.2d 1266, 1268 (Pa. Super. 2002).
However, an abuse of discretion is more than just an error in judgment.
Commonwealth v. Jordan, 125 A.2d 55, 71 (Pa. Super. 2015). Such abuse of
discretion will only be found if the judgment was "manifestly unreasonable or the result
of partiality, prejudice, bias, or ill-will." Id. This discretion allows the sentencing judge to
sentence up to and including the maximum sentence authorized by statute; the only line
that a sentence may not cross is the statutory maximum sentence. Commonwealth v.
Gordon, 942 A.2d 174, 182 (Pa. 2007).
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Pennsylvania law requires that the sentence court "make as part of the record
and disclose in open court at the time of the sentencing, al statement of the reason or
reasons for the sentence imposed". 42 Pa.C.S.A. $9712(b). "Indeed, in fashioning
sentence, a judge is obligated to follow the general principl, that the sentence imposed
should call for confinement consistent with the protection of lhe public, the gravity of the
offense as it relates to the impact on the life of the victim and the community, and the
rehabilitative needs of the Defendant." Commonwealth Monahan, 860 A.2d 180,
184 (Pa. Super. 2004).
Section 9725 of Title 18 states:
The court shall impose a sentence of total confinement if, having regard to the
nature and circumstance of the crime and the history, character, and condition of the
defendant, it is of the opinion that the total confinement of the defendant is necessary
because:
(1) There is undue risk that during a period of probation or partial confinement
the defendant will commit another crime;
(2) The defendant is in need of correctional treatment that can be provided most
effectively by his commitment to an institution; or
(3) A lesser sentence will depreciate the seriousness of the crime of the
defendant.
The Court is satisfied that it followed the statutory sentencing requirements of
the Judicial Code and the mandates of Pennsylvania law. The Defendant was given a
middle of the standard range sentence on each count with a long tail of parole. The
Appellant was provided notice of why and how the Court was fashioning his sentence
at the time of the sentencing hearing? and also referenced those considerations in the
sentencing Order of January 11, 2021. This Jurist readily acknowledged at the
3
This Court incorporates by reference herein the full sentencing transcript.
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sentencing hearing and in the sentencing Order that the Pre-Sentence Investigation
(PSI), as corrected, was considered and made part of the record, as was all, the
mitigating information offered for the Defendant. (Sentencing Transcript 1/11/22, p.7-9
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and the sentencing order dated January 11, 2021 incorporated by reference hereto as
though set forth at length herein). The Undersigned disagrees that with the defense
framing of the issue as an unduly harsh sentence for "a mere two drug deliveries
resulting in the distribution of 7.8 grams of methamphetamine and 4.08 grams of
fentanyl. (emphasis added) when the entirety of the facts and circumstances of the
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record are considered, along with the Appellant's history, as well as the Court's mandate
to fashion an individualized sentence upon the Appellant.
The evidence of Appellant's record/history was clear and referenced by the Court
at the proceeding, as contained in the PSI. The Defendant's criminal history spans since
he was 16 years of age. Per the PSI, Appellant had 9 confinements, 18 prior adult
arrests, 3 juvenile arrests (with 2 adjudications), 15 convictions, 8 paroles granted, 3
paroles revoked, 3 paroles denied, 7 prior probations (with 2 revocations). The
Appellant's poor history was cited by the Court as a basis for the sentencing scheme.
"He has a poor supervision history with numerous arrest, revocations, technical
violations on almost a yearly basis since 2009. These arrests include misdemeanors
and felonies and some weapon violation offenses." (1/11/22 Order p. 7). The Court
cited that one of the offenses involved a weapon while incarcerated. "The Court
believes a consecutive sentence is necessary for each of these crimes ... in light of his
prior poor supervision and prior history of opportunities for rehabilitation ... The Court
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recognizes the Defendant's failure to avail himself of rehabilitation while providing
community protection is the purpose of this sentence." (1/11/22/ Order, p. 8).
The need to protect society is supported by the record of the proceedings and
the information within the PSI. The Court referenced the record of the proceedings
when considering the appropriate sentence. (1/11/22 Order p. 8). The record at trial
established that the Defendant knew he was dealing in dangerous substances. Knowing
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that the Cl did not use heroin, Appellant arranged for the C.I. to purchase heroin and
told the C.I. during the November 6th drug delivery that she should advise her
customers to make sure to be careful because that was "the stuff that was killing
people." (T.T. 10/21/21 p. 143, I. 13-16). The Jury learned that the substance sold, as
heroin, by the Appellant to the C.I. on November 6", was confirmed to be fentanyl upon
forensic examination. Yet, despite the Appellant holding the drug out as heroin, he
understood the lethality.
When discussing the rehabilitative aspects of sentencing for Appellant, it is clear
from the record that the nature and type of rehabilitation is not the same for him as for
those who are addicted to drugs. The rehabilitative needs of this Appellant are
criminogenic. There was no evidence to show that Appellant is a drug user. It is
reasonable to infer from the evidence that he was a businessman and used the C.I.,
who are struggling with drug addictions, to make money. He also understood the
financial benefit to be made by selling drugs because he told the C.I. to cut it [heroin]
up to make more money. (T.T. 10/21/21 p. 143, I. 13-16).
His motivations for engaging in criminal behavior in light of his supervision history
and the deadliness of one of the drugs he sold are factors when evaluating the need to
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protect society and thus, whether the Appellant should have received a long period of
supervision and whether he should receive concurrent or consecutive sentences.
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Under these circumstances and considering the history of the Appellant, the sentence
imposed appropriately addresses the need to protect the public for an extended period
of time (with oversight by a parole officer) from the Appellant, a businessman, peddling
dangerous substances with the sole selfish motivation to mjke money.
With regard to the imposition of consecutive sentences, the Pennsylvania
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Superior Court has stated:
[T]he imposition of consecutive rather than concurrent sentences lies
within the sound discretion of the sentence in court. Longstanding
precedent of this court recognizes that 42 Pa.C. S. A. § 9721 affords the
sentencing court discretion to impose its sentence concurrently for
consecutively to other sentences being imposed at the same time or to
sentences already imposed. A challenge to the imposition of a
consecutive rather than a concurrent sentence does not present a
substantial question regarding the discretionary aspects of sentence. We
see no reason why [a defendant] should be afforded a volume discount
for his crimes by having all sentences run concurrently. However, we have
recognized that a sentence can be so manifestly excessive in extreme
circumstances that may create a substantial question, When determining
whether it substantial question has been raised, we have focused upon
whether the decision to sentence consecutively raises the aggregate
sentence to, what appears to be its face to be an excessive level in light
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of the criminal conduct in the case. Commonwealth v. Zirkle, 107 A.3d
127, 132 (Pa.Super. 2014) (citations omitted).
In the case before this Court, the evidence established and the jury convicted
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Appellant of delivering/selling quantities of methamphetamine on more than one
occasion and also of delivering/selling fentanyl. Methamphetamine is a dangerous
substance and of course, the lethality of fentanyl is well known. Based upon the
testimony of record, he was aware that the Commonwealth's witness struggled with
addiction. He had numerous convictions over years and ignored opportunities to
change his criminal behavior. While the Appellant was performing at work, this behavior
coincided with his bail for the current charges. Furthermore, even considering the
Appellant alleged connection to his children and the other mitigation evidence
presented, Appellant engaged in selling drugs, per the Jury verdicts. The Appellant
failed to adhere to appropriate behavior on previous periods of supervision with criminal
conduct spanning the prior 16 years. This Court, like the Zirkle court, found no reason
to give the Defendant a volume discount in his sentencing scheme and said so. (1/11/22
Order, p. 8).
The Court imposed an individualized sentence, taking into account the entirety
of the record, the Defendant's history, rehabilitative needs, contents of the pre-sentence
investigation, mitigation information, punishment and the need to protect society. The
sentence was not manifestly excessive, "unduly harsh," or an abuse of discretion.
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CONCLUSION
Accordingly, based upon the record and the applijable law, the Undersigned
respectfully requests the Honorable Superior Court determine the appeal is without
merit and deny and dismiss the appeal.
Respectfully submitted,
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