Com. v. Saunders, T.

J-S27008-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREE MARCE SAUNDERS :
:
Appellant : No. 956 WDA 2020
Appeal from the Judgment of Sentence Entered December 18, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014353-2017
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: January 20, 2022
Appellant, Tyree Marce Saunders, appeals the December 18, 2019
judgment of sentence imposing an aggregate sentence of seven to fourteen
years’ incarceration, followed by five years’ probation. We affirm.
The trial court summarized the factual and procedural history as follows:
[Appellant] was charged with one count of drug delivery resulting
in death (18 Pa.C.S.[A.] § 2506(a)); one count of possession with
intent to deliver a controlled substance (35 [P.S.]
§ 780-113(a)(30)); one count of possession of a controlled
substance (35 [P.S.] § 780-113(a)(16)); and one count of
criminal use of a communication facility (18 Pa.C.S.[A.]
§ 7512(a)). The charges stemmed from an incident which began
on March 21, 2017, when [Appellant] delivered multiple stamp
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* Retired Senior Judge assigned to the Superior Court.
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bags[1] containing fentanyl to the victim[.] The victim ingested
the fentanyl and subsequently died on March 22, 2017. The
Allegheny County Medical Examiner’s Office later performed an
autopsy and determined that he died as a result of fentanyl
poisoning.
During their investigation into the victim’s death, police examined
the victim’s cell[ular tele]phone and discovered communications
between the victim and a contact by the name of “[T]yree.” Police
subsequently discovered that “[T]yree” was, in fact, [Appellant].
Upon examining the communications between the victim and
[Appellant], police learned that the two men [] arranged a drug
transaction using [cellular telephone] text messages prior to the
victim’s death. The victim’s girlfriend also identified [Appellant]
as a possible suspect and provided police with a photo[graph] of
him.
As part of their investigation, police used the victim’s [cellular
tele]phone to pose as the victim and arrange a controlled drug
buy from [Appellant]. When [Appellant] arrived at the
prearranged location to conduct the transaction, detectives took
him into custody. During a search incident to arrest, police
recovered two [ ] bundles of glassine bags containing fentanyl
from [Appellant’s] coat pocket. Police also discovered that
[Appellant] was holding the cell[ular telephone connected to the
telephone number used] to arrange the controlled drug buy.
A jury convicted [Appellant] of drug delivery resulting in death,
two counts of drug possession, and criminal use of a
communication device on September 12, 2019. On December 18,
2019, [the trial] court imposed an aggregate sentence of seven []
to [fourteen] years’ incarceration, followed by five [] years’
probation in relation to [Appellant’s] convictions.[2] On January
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1 The term “stamp bag” is used to identify the common packaging for
narcotics. See Commonwealth v. Luczki, 212 A.3d 530, 548 (Pa. Super.
2019).
2 At sentencing, the trial court imposed a term of incarceration at count 1
(drug delivery resulting in death) of 80 to 160 months and at count 5 (criminal
use of a communication facility) of six to 12 months. See N.T. Sentencing
Hearing, 12/18/19, at 10-11. The court ordered that Appellant must serve
(Footnote Continued Next Page)
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23, 2020, [Appellant] filed a post-sentence motion in which he
challenged the discretionary aspects of his sentence and asserted
that the jury’s verdict was against the weight of the evidence.
[Appellant’s] post-[sentence] motion was [denied by operation of
law pursuant to Pa.R.Crim.P. 720(B)(3)(a)3] on August 18,
2020[.]
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these terms of incarceration consecutively. It appears that, within its written
order of sentence, the trial court amended the sentence at count 1 to six-and-
one-half to 13 years’ incarceration, i.e., 78 to 156 months’ incarceration, such
that the aggregate sentence totaled seven to 14 years’ incarceration. See
Sentence Order, 12/18/19. While a trial court is authorized to modify an order
within 30 days of entry, that court must notify the parties of such modification.
See 42 Pa.C.S.A. § 5505 (stating, “[e]xcept as otherwise provided or
prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or allowed.”)
(emphasis added).
The trial court did not provide notification in the case sub judice. The failure
to provide notification of a sentencing modification implicates the legality of
Appellant’s sentence, an issue we may raise sua sponte. See
Commonwealth v. Strafford, 194 A.3d 168, 172 (Pa. Super. 2018) (“This
[C]ourt may review issues regarding the legality of sentence sua sponte.”).
Apart from the lack of notification, Appellant’s amended sentence is otherwise
lawful. Moreover, the record reflects that all parties were aware of the
modification as Appellant, the Commonwealth, and the trial court rely upon
the sentence as articulated within the written sentencing order. The
modification inures to the benefit of Appellant, and the Commonwealth does
not take issue with the modification. Accordingly, we find that the interests
of justice are best served in the case sub judice by declining to remand for
resentencing based solely upon the failure to notify the parties of modification.
Herein, we will refer to the sentences as articulated within the sentence order.
See Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013) (determining
that a legal sentencing order controls over the oral statements of the
sentencing court).
3 Rule 720(B)(3)(a) states that if a trial court fails to decide a post-sentence
motion within 120 days of its filing, or grant an extension (which was not the
case here), then the post-sentence motion is deemed denied by operation of
law. Pa.R.Crim.P. 720(B)(3)(a).
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Trial Court Opinion, 2/23/21, at 2-3 (extraneous capitalization omitted). This
appeal followed.4
Appellant raises the following issues for our review:
[1.] Were the [convictions] against the weight of the evidence
because the testimony of [a Commonwealth witness] was
not credible, there was no reliable evidence that [Appellant]
delivered the drugs that killed [the victim], and the
inculpatory statement was wholly unreliable?
[2.] Did the trial court abuse[] its discretion when it imposed a
manifestly excessive and unreasonable sentence that
double counted factors from the guidelines[,] failed to
properly consider all of the relevant sentencing criteria
under 42 Pa.C.S.A. § 9721(b)[,] and did not place adequate
reasons on the record for the sentence imposed or state the
permissible range of sentences?
Appellant’s Brief at 5 (reordered for ease of disposition; extraneous
capitalization omitted).
Appellant’s first issue raises a weight of the evidence claim.5 Id. at
36-43. Appellant argues that the Commonwealth witness’s testimony was not
credible because she was a drug user who had motive to lie, and impeachment
testimony established she did, in fact, lie in providing her testimony at trial.
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4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
5 The fact that Appellant’s post-sentence motion was denied by operation of
law, pursuant to Rule 720(B)(3)(a), does not preclude our review of his weight
of the evidence claim. See Commonwealth v. Upshur, 764 A.2d 69, 73
(Pa. Super. 2000) (stating that a weight claim may be reviewed on appeal
despite the claim’s denial by operation of law because “the effect of the denial
operates in the same manner as if the [trial] court had denied the motion
itself”).
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Id. at 36-40. Further, he contends that no reliable evidence established that
Appellant delivered the drugs that caused the victim’s death because there
were no eyewitnesses, the cellular telephone text messages did not confirm
delivery, and multiple drug dealers were selling the same stamp bags labelled
“NBA Finals.” Id. at 40-42.6 Finally, Appellant claims that [a police
detective’s] testimony regarding Appellant’s inculpatory statement was
unreliable because Appellant did not sign a written Miranda7 waiver prior to
making any statement to the detective, the alleged inculpatory statement was
not recorded, and the alleged inculpatory statement was not disclosed in
pre-trial discovery. Id. at 42-43. For these three reasons, Appellant argues
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6To the extent that Appellant’s argument raises concerns as to the sufficiency
of the evidence regarding the element of delivery, a claim Appellant raised in
his Rule 1925(b) concise statement, Appellant waived such a claim before this
Court. See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super.
2002) (stating, “an issue identified on appeal but not developed in the
appellant’s brief is abandoned and, therefore, waived”); see also Pa.R.A.P.
2119(a) (requiring an appellate brief to contain argument on each issue raised
with citation of authorities as deemed pertinent).
Even if Appellant properly framed his argument as a sufficiency claim, it would
not warrant relief. It is well-established that the Commonwealth may sustain
its burden of proof by means of wholly circumstantial evidence.
Commonwealth v. Edwards, 229 A.3d 298, 305 (Pa. Super. 2020).
Moreover, by arguing a weight of the evidence claim, Appellant concedes that
the Commonwealth produced sufficient evidence of each element of the crime.
Id. at 306.
7 Miranda v. Arizona, 384 U.S. 436 (1966).
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that “the evidence of guilt was utterly weak and inconclusive” and that its
convictions should be vacated and a new trial granted. Id. at 43.
Our standard of review in a weight of the evidence claim is well-settled.
A motion for a new trial based on a claim that the [jury] verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the [trial court] on the
same facts would have arrived at a different conclusion. When a
trial court considers a motion for a new trial based upon a weight
of the evidence claim, the trial court may award relief only when
the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice, and the award of a new trial is imperative so that
right may be given another opportunity to prevail. The inquiry is
not the same for an appellate court. Rather, when an appellate
court reviews a weight claim, the [appellate] court is reviewing
the exercise of discretion by the trial court, not the underlying
question of whether the verdict was against the weight of the
evidence. The appellate court reviews a weight claim using an
abuse of discretion standard.
At trial, the jury was the ultimate fact-finder and the sole arbiter
of the credibility of each of the witnesses. Issues of witness
credibility include questions of inconsistent testimony and
improper motive. A jury is entitled to resolve any inconsistencies
in the Commonwealth’s evidence in the manner that it sees fit.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and
quotations omitted). “[T]he trier of fact, in passing upon the credibility of
witnesses, is free to believe all, part, or none of the evidence.” Id., quoting
Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009).
In its Rule 1925(a) opinion, the trial court set forth the evidence elicited
during Appellant’s jury trial. The trial court explained,
In the instant matter, the Commonwealth proved – to the jury’s
satisfaction – that [Appellant] delivered fentanyl to the victim,
which ultimately caused the victim’s death. The Commonwealth
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presented evidence establishing that [Appellant] arranged a drug
transaction with police detectives the day after the victim fatally
overdosed using the same cell[ular tele]phone he []used to
arrange the drug transaction with the victim. In addition, police
detectives testified that, when [Appellant] arrived at the victim’s
place of employment to conduct the controlled drug buy, he was
arrested and found to be in possession of fentanyl and the cell[ular
tele]phone that had been used to conduct both the March 21,
2017[] drug transaction with the victim and the subsequent
transaction with police. Lastly, when [Appellant] was arrested, he
admitted to police that he had delivered the stamp bags
containing fentanyl to the victim.
Trial Court Opinion, 2/23/21, at 5-6 (extraneous capitalization omitted). The
trial court concluded that Appellant was not entitled to a new trial on his weight
of the evidence claim because it was within the province of the jury as
fact-finder to determine the weight and credibility afforded to the testimony
and evidence presented at trial and to believe all, part, or none of it in reaching
its verdict. Id. at 10-11. Thus, the trial court did not find that the verdict
“shocked one’s sense of justice.” Jacoby, supra.
Upon review, we discern no abuse of discretion in the denial of
Appellant’s weight of the evidence claim. Appellant’s challenges to the
credibility and reliability of the evidence require this Court to step into the
shoes of the jury, as fact-finder, to reassess and reweigh the evidence in favor
of Appellant. This is not the role and function of this Court on review. See
Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013) (stating, it is
inappropriate for an appellate court to “revisit[] the underlying question of
whether the verdict was against the weight of the evidence”); see also
Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021)
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(stating, “[i]t is well-settled that we cannot substitute our judgment for that
of the trier of fact.”). Consequently, Appellant is not entitled to relief.
Appellant’s second issue, arguing that the trial court abused its
discretion by imposing a manifestly excessive and unreasonable sentence,
implicates the discretionary aspects of sentencing. Appellant’s Brief at 5.
When an appellant challenges the discretionary aspects of a sentence, the
right to appeal is not absolute. Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa. Super. 2011). Instead, before this Court can address the merits of
such a challenge, we must determine whether the appellant invoked this
Court’s jurisdiction by satisfying a four-part test. See Commonwealth v.
Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017) (stating, “[o]nly if the
appeal satisfies these requirements may we proceed to decide the substantive
merits of [an a]ppellant’s claim”).
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect,
[see] 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, [see] 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations
omitted).
In the instant case, Appellant filed a timely notice of appeal, properly
preserved his claims by filing a post-sentence motion, and included a Rule
2119(f) statement in his brief. See Appellant’s Brief at 16-19. Thus, we
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examine whether he raised a substantial question. A substantial question is
raised by demonstrating that the trial court’s actions were inconsistent with
the Sentencing Code or contrary to a fundamental norm underlying the
sentencing process. Commonwealth v. Bonner, 135 A.3d 592, 603 (Pa.
Super. 2016). Whether an appellant raises a substantial question on appeal
is evaluated on a case-by-case basis. Id. This Court will not look beyond the
statement of questions presented and the Rule 2119(f) statement to
determine whether a substantial question exists. Commonwealth v.
Radecki, 180 A.3d 441, 468 (Pa. Super. 2018).
Here, Appellant argues that the trial court imposed a manifestly
excessive sentence because the trial court: (1) impermissibly double counted
a factor already implicit in the sentencing guidelines; (2) placed insufficient
reasons on the record for imposing the sentence where the only reference was
to the gravity of the offense; and (3) failed to properly consider all of the
sentencing factors of 42 Pa.C.S.A. § 9721(b) or any mitigating evidence when
imposing the sentence. Appellant’s Brief at 17-18.
A substantial question is presented where an appellant argues that the
trial court imposed a manifestly excessive sentence by focusing solely on the
gravity of the crime. See Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa.
Super. 2004). Moreover, an averment that a trial court impermissibly relied
on factors already taken into account within the sentencing guidelines raises
a substantial question. Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa.
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Super. 2019); see also Commonwealth v. Goggins, 748 A.2d 721, 731-
732 (Pa. Super. 2000) (en banc). Here, Appellant argues that the trial court,
in imposing its sentence, considered factors already implicit in the sentencing
guidelines and focused solely on the gravity of the offenses. Therefore,
Appellant raised a substantial question. Thus, we proceed to the merits of
Appellant’s claims.
Sentencing is a matter vested in the sound discretion of the [trial
court], 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
[trial] 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. Blount, 207 A.3d 925, 934-935 (Pa. Super. 2019)
(citation omitted), appeal denied, 218 A.3d 1198 (Pa. 2019).
When this Court reviews the discretionary aspects of a sentence, its
analysis is governed by Sections 9781 of the Pennsylvania Sentencing Code.
Section 9781, in pertinent part, states:
§ 9781. Appellate review of sentence
...
(c) Determination on appeal.--The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
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(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(c) and (d). Appellant’s aggregate sentence of seven to
fourteen years’ imprisonment to be followed by a five-year period of probation
falls within the sentencing guidelines;8 therefore, we may vacate and remand
only if the sentence is clearly unreasonable. See 42 Pa.C.S.A. § 9781(c)(2).
Appellant argues that his sentence is manifestly excessive because the
trial court impermissibly double counted factors when it focused on the lethal
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8 Appellant’s assertion that the maximum sentences imposed for his
convictions at count 1 and count 5 were outside of, or at the top of, the
aggravated range for sentencing purposes, see Appellant’s Brief at 21, ignores
that “the sentencing guidelines provide for minimum and not maximum
sentences.” Boyer, 856 A.2d at 153 (emphasis added). Here, Appellant’s
minimum sentences for his convictions at count 1 and count 5 were
six-and-one-half years’ incarceration and six months’ incarceration,
respectively. See Order of Sentence, 12/18/19. Appellant concedes that
these minimum sentences are within the standard range for each count.
Appellant’s Brief at 21. Moreover, the trial court may impose the sentences
that are set to run consecutively or concurrently. 42 Pa.C.S.A. § 9721(a).
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nature of fentanyl because the lethal nature of the drug is already factored
into the sentencing guidelines as an element of his drug delivery resulting in
death conviction. Appellant’s Brief at 24-25 (emphasis added). Appellant
further argues that the trial court focused solely on the gravity of the offense
– i.e., the lethal nature of fentanyl – such that it placed insufficient reasons
on the record and inadequately considered the sentencing factors, including
mitigating evidence. Id. at 30-33. Appellant’s arguments are unavailing.
Appellant fails to demonstrate that the trial court’s sentence was clearly
unreasonable. “[W]here a sentence is within the standard range of the
[sentencing] guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171
(Pa. Super. 2010). Moreover, a trial court, in imposing its sentence, may
consider factors already included in the sentencing guidelines so long as those
factors are not “the sole reason for increasing or decreasing a sentence to the
aggravated or mitigated range. Commonwealth v. Simpson, 829 A.2d
334, 339 (Pa. Super. 2003) (emphasis added) (stating that, a trial court may
consider factors already included in the guidelines if “they are used to
supplement other extraneous sentencing information”). The standard
sentencing range for the offense of drug delivery resulting in death is 60 to
78 months’ incarceration. The trial court imposed a minimum sentence of 78
months’ incarceration. The standard range for criminal use of a
communication facility is restorative sanctions to nine months’ incarceration.
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The trial court imposed a minimum sentence of six months’ incarceration.
Therefore, Appellant’s sentences on count 1 and count 5 were within the
standard range of the sentencing guidelines and, thus, were not clearly
unreasonable. See Commonwealth v. Coss, 695 A.2d 831, 833-834 (Pa.
Super. 1997) (sentence is not inappropriate or excessive where the sentence
is within the standard range of the applicable guidelines).
Moreover, the trial court properly considered the relevant factors
including mitigating evidence. First, the record reveals that, at sentencing,
the trial court benefited from defense counsel’s arguments, a statement from
the victim’s mother, Appellant’s statement by way of allocution, two
pre-sentence investigation (“PSI”) reports, and the applicable guidelines. See
N.T. Sentencing Hearing, 12/18/19, at 2-9. The trial court indicated that it
reviewed the PSI reports and the applicable guidelines. It further balanced
Appellant’s lack of a criminal record against his actions of dealing a drug he
knew was dangerous when imposing Appellant’s standard range sentence. Id.
at 9-10 (emphasis added).9 Thus, the trial court’s reasoning was proper and
did not consider a factor already included in the sentencing guidelines as “the
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9The trial court, after noting it reviewed two PSI reports and the applicable
guidelines, explained:
It’s clear that you have no prior criminal record. It is also clear
you were dealing a drug, with common knowledge, that has the
ability to cause death or serious bodily injury to someone. You
weren’t dealing marijuana. You were dealing fentanyl.
N.T. Sentencing Hearing, 12/18/19, at 9-10.
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sole reason for increasing or decreasing a sentence to the aggravated or
mitigated range.” Simpson, supra.
Moreover, by indicating on the record that it possessed and reviewed
the PSI reports, the trial court satisfied its requirement of stating its reasons
for the sentences on the record. Commonwealth v. Leatherby, 116 A.3d
72, 83-84 (Pa. Super. 2015) (holding that, when the trial court possesses a
PSI report, we presume it “was aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors”); see also Boyer, 856 A.2d at 154 (stating that, a trial
court’s indication that it reviewed PSI report satisfies the requirement of
stating its reasoning on the record). Thus, the trial court satisfied the
requirement that it place its reasoning on the record and did not abuse its
discretion in imposing Appellant’s standard range sentence. See Leatherby,
116 A.3d at 84 (stating, “[h]aving been fully informed by the [PSI] report, the
[trial] court’s discretion should not be disturbed”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2022
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