Com. v. Mansurov, O.

J-S11045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OZOD MANSUROV, :
:
Appellant : No. 2117 EDA 2016
Appeal from the Judgment of Sentence May 10, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008729-2015
BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 01, 2018
Ozod Mansurov (“Mansurov”) appeals from the judgment of sentence
imposed after a jury convicted him of criminal trespass.1 We affirm.
In its Opinion, the trial court adeptly detailed the relevant factual and
procedural history, which we incorporate as though fully set forth herein. See
Trial Court Opinion, 7/14/17, at 1-6.2
In this timely appeal, Mansurov presents the following issues for our
review:
____________________________________________
1See 18 Pa.C.S.A. § 3503(a)(1) (providing, in relevant part, that “[a] person
commits an offense if, knowing that he is not licensed or privileged to do so,
he … breaks into any building or occupied structure or separately secured or
occupied portion thereof.”).
2 After the trial court sentenced Mansurov, he filed a timely post-sentence
Motion challenging, inter alia, the weight and sufficiency of the evidence
supporting his conviction, and the discretionary aspects of his sentence. The
trial court denied this Motion by an Order entered on June 3, 2016.
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1. Whether the evidence was insufficient as a matter [of] law to
find … Mansurov guilty of 18 Pa.C.S.A. § 3503, criminal
trespass of a building and/or occupied structure[,] as the
evidence failed to establish Mansurov was not privileged to
enter the complainant’s apartment[?] Likewise, the evidence
was insufficient to prove he gained entry to complainant’s
home “by force, breaking, intimidation, unauthorized opening
of locks or through an opening not designed for human access.”
2. Whether the jury’s finding of guilt[] on the charge of criminal
trespass was against the great weight of the evidence
presented at trial[,] as the testimony of the complainant was
simply not credible and should not have been accepted by the
jury[?] The Complainant did not testify that she told Mansurov
to leave.
3. Whether the trial court erred in granting the Commonwealth of
Pennsylvania’s Motion to Admit … Mansurov’s prior bad acts[,]
pursuant to Pennsylvania Rule of Evidence 404(b)[,] involving
an incident in Montgomery County[,] as it was prejudicial and
was sought to show [Mansurov’s] propensity to commit the
acts alleged in the case before this Court[?]
4. Whether the trial court erred in granting a “stay away order”
as to three [] individuals and against [] Mansurov[,] as the
court was without the legal authority to do so and the court
issued stay away order(s) for individuals who had no real
relationship to the action[?] This part of the sentence imposed
by the court was illegal.
5. Whether the trial court abused its discretion in sentencing
[Mansurov] well outside the Pennsylvania Sentencing
guidelines[,] and giving him a sentence of three (3) to six (6)
years, when the guideline calculation was []restorative
sanctions to nine (9) months[,] plus or minus three (3)
months[,] on the singular charge of criminal trespass[,] and
[the court] failed to articulate the reason for [] sentencing well
outside of the guidelines[,] which was excessive[,] and there
was no rational basis for the sentences as well as being
unreasonable[?]
Brief for Appellant at 12-13.
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In his first issue, Mansurov argues that the Commonwealth failed to
present sufficient evidence for the jury to properly find that all of the elements
of criminal trespass were met beyond a reasonable doubt. See id. at 20-22.
Mansurov asserts as follows:
The Commonwealth was required to show that [Mansurov] knew
he was not licensed or privileged to go into the apartment of
complainant[, i.e., Olena [M]orenska (hereinafter, the
“complainant”)]. The evidence was insufficient to establish [that]
Mansurov was not privileged to enter the complainant’s
apartment. Likewise, the evidence was insufficient to prove he
gained entry to [c]omplainant’s home “by force, breaking,
intimidation, unauthorized opening of locks or through an opening
not designed for human access.”
Id. at 21-22 (quoting 18 Pa.C.S.A. § 3503(a)(3) (setting forth the statutory
definition of “breaks into”)); see also Brief for Appellant at 22 (asserting that
“[i]t was never communicated to Mansurov that he was not permitted to enter
the apartment[,] as his girlfriend[, whom Mansurov had suspected was in the
complainant’s residence at the time of his forced entry,] would stay there and
[Mansurov] had been there before to see her.”).
We apply the following standard of review when considering a challenge
to the sufficiency of the evidence:
The standard we apply … is whether[,] viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and substitute our
judgment for [that of] the fact-finder. In addition, we note that
the facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that[,] as a matter
of law[,] no probability of fact may be drawn from the combined
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circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the finder
of fact[,] while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
In its Opinion, the trial court concisely addressed Mansurov’s issue, set
forth the applicable law, and determined that the evidence was sufficient for
the jury to find that the Commonwealth had proved all elements of criminal
trespass beyond a reasonable doubt. See Trial Court Opinion, 7/14/17, at 8-
9. As we agree with the trial court’s rationale and determination, which is
supported by the record, we affirm on this basis concerning Mansurov’s
sufficiency challenge. See id.
In his next issue, Mansurov contends that the trial court abused its
discretion in denying his post-sentence Motion for a new trial, where the jury’s
verdict of guilty on the criminal trespass charge was against the weight of the
evidence and shocks one’s sense of justice. See Brief for Appellant at 22-23.
According to Mansurov, “[t]he testimony of the complainant was simply not
credible and should not have been accepted by the jury.” Id. at 22. Mansurov
further argues that “[t]he [c]omplainant did not testify that she told Mansurov
to leave[,]” and she “did not see Mansurov enter the apartment, [and] did not
see him damage the apartment[.]” Id. Finally, Mansurov points out that the
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defense “presented a witness[, namely, Inobat Ramazonova
(“Ramazonova”),] who stated [that] the [complainant’s] apartment door
sustained no noticeable damage. Further, [an additional defense witness,
Nukmanzhan Khalilov (“Khalilov”),] testified [that Mansurov] had a key to the
apartment[,] which would have allowed [Mansurov] to lawfully enter the
apartment.” Id. at 22-23;3 see also N.T., 3/11/16, at 28-38.
Our standard of review of a weight of the evidence claim is as follows:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice.
On appeal, our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the jury
verdict did not shock its conscience. Thus, appellate review of a
weight claim consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence.
____________________________________________
3 Mansurov fails to cite the place in the record containing the testimony he
references, nor does he even identify these two witnesses by name. See
Pa.R.A.P. 2119(c) (stating that “[i]f reference is made to … any [] matter
appearing in the record, the argument must set forth, in immediate connection
therewith, or in a footnote thereto, a reference to the place in the record where
the matter referred to appears[.]”). We caution Mansurov that it is not the
responsibility of this court to “scour the record to find evidence to support an
argument.” Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super.
2007) (en banc).
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Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(quotation marks and citations omitted); see also Commonwealth v.
Rabold, 920 A.2d 857, 860 (Pa. Super. 2007) (stating that “[o]ne of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence.”)
(citation omitted).
Initially, concerning Mansurov’s assertion that the jury should not have
credited the testimony of the complainant and weighed it in the fashion it did,
this Court may not reassess the credibility of the witnesses and reweigh the
evidence presented at trial, which was within the sole purview of the jury.
See Gonzalez, supra.
Moreover, concerning the testimony of Ramazonova and Khalilov, the
trial court noted in its Opinion as follows:
Although [Mansurov] proffered a witness[, Ramazonova,] who
stated that the apartment door sustained no noticeable damage,
it was unclear whether [Ramazonova] fully understood the
questions that were asked during either direct or cross
examination. [Concerning the testimony of Khalilov, a]lthough
[Khalilov] initially stated that he had observed [Mansurov]
entering the unit with a key on several occasions, cross-
examination and redirect examination revealed that [Khalilov]
was referring to [Mansurov’s] key to the front door of the multi-
unit apartment building. Given the fact that [Mansurov’s] family
also lived in the building, this was not probative of [Mansurov’s]
rightful access to [the complainant’s] apartment.
Trial Court Opinion, 7/14/17, at 10-11. Our review discloses that the trial
court’s foregoing rationale is supported by the record, and we discern no
abuse of its discretion. Accordingly, none of Mansurov’s contentions under his
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weight challenge entitle him to relief, and the jury’s verdict does not shock
our collective conscience. Mansurov’s second issue thus fails.
In his third issue, Mansurov asserts that the trial court abused its
discretion in granting the Commonwealth’s Motion in limine, which sought to
introduce at trial evidence of Mansurov’s prior bad acts (namely, his prior
conviction for breaking into another ex-girlfriend’s residence in August 2014
– hereinafter, “the prior bad act evidence”). See Brief for Appellant at 23-30.
According to Mansurov, the prior bad act evidence was irrelevant to the instant
charges, unduly prejudicial, and improperly introduced to prove that he had a
bad character and propensity to commit crimes. Id. at 28, 30. Mansurov
contends that, contrary to the Commonwealth’s assertion in its Motion in
limine, the prior bad act evidence was not relevant to establish motive, intent
or absence of mistake. Id. at 26-28. Mansurov protests that “[h]ere, the
Commonwealth has done nothing more than identify the similarities between
the prior conviction and the charges” filed in the instant case. Id. at 29; see
also id. at 28 (asserting that any similarities were “tenuous”).
When reviewing an order granting a motion in limine, we apply an
evidentiary abuse of discretion standard of review. Commonwealth v.
Stokes, 78 A.3d 644, 654 (Pa. Super. 2013). “The admissibility of evidence
is a matter directed to the sound discretion of the trial court, and an appellate
court may reverse only upon a showing that the trial court abused that
discretion.” Id. (citation omitted).
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“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc);
see also Pa.R.E. 402. “Evidence is relevant if it has any tendency to make a
fact more or less probable than it would be without the evidence[,] and the
fact is of consequence in determining the action.” Pa.R.E. 401. However,
“[t]he court may exclude relevant evidence if its probative value is outweighed
by the danger of … unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Pa.R.E. 403.
Pennsylvania Rule of Evidence 404(b)(1) provides that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” Pa.R.E. 404(b)(1).
However,
“evidence of prior bad acts, while generally not admissible to
prove bad character or criminal propensity, is admissible when
proffered for some other relevant purpose so long as the probative
value outweighs the prejudicial effect.” [Commonwealth v.]
Boczkowski, 846 A.2d [75,] 88 [(Pa. 2014)]. See also
[Commonwealth v.] Arrington, 86 A.3d [831,] 842 [(Pa.
2014)], citing Pa.R.E. 404(b)(1); Commonwealth v. Morris,
493 Pa. 164, 425 A.2d 715, 720 (Pa. 1981) (law does not allow
use of evidence which tends solely to prove accused has “criminal
disposition”). Such evidence may be admitted to show motive,
identity, lack of accident or common plan or scheme. Arrington,
86 A.3d at 842, citing Pa.R.E. 404(b)(2); Commonwealth v.
Briggs, 608 Pa. 430, 12 A.3d 291, 337 (Pa. 2011) (Rule
404(b)(2) permits other acts evidence to prove motive, lack of
accident, common plan or scheme and identity). In order for other
crimes evidence to be admissible, its probative value must
outweigh its potential for unfair prejudice against the defendant,
Pa.R.E. 404(b)(2), and a comparison of the crimes proffered must
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show a logical connection between them and the crime currently
charged. Arrington, 86 A.3d at 842.
Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017).
Moreover, evidence of prior bad acts/crimes may also be “admitted to
show a defendant’s actions were not the result of a mistake or accident, where
the manner and circumstances of two crimes are remarkably similar.” Tyson,
119 A.3d at 359 (citation and quotation marks omitted); see also
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (holding that
evidence of defendant’s prior physical assaults of his child was admissible to
show absence of mistake or accident in prosecution for intentional beating
death of the child).
In its Opinion, the trial court addressed Mansurov’s claim and
determined that the court did not err in admitting the prior bad act evidence,
as (1) its probative value substantially outweighed any potential for prejudice;
and (2) it was admitted to establish Mansurov’s lack of mistake, not his
propensity to commit crimes. See Trial Court Opinion, 7/14/17, at 12-13.
We agree with the trial court’s reasoning and determination, and therefore
affirm with regard to this issue based on the trial court’s Opinion. See id.
In his fourth issue, Mansurov argues that the trial court erred and
imposed an illegal sentence insofar as it imposed a “stay away Order” in
connection with the sentence. See Brief for Appellant at 30-33. Mansurov
urges that “the trial court was initially without authority to order the stay away
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from any of the [three] individuals [at issue4], but more importantly[,] … [the
court] ordered Mansurov to stay away, not only from the complainant in this
case, but to also two [] other individuals who were not complainants, not
victims and had only a tangential relationship to the case itself.” Id. at 31
(footnote added, emphasis omitted). According to Mansurov, the trial court
lacked jurisdiction to impose the stay away order, “to the extent that … [such]
order may be construed as a condition of parole[.]” Id. at 32; see also id.
at 33 n.4 (stating that “[a]t sentencing, the trial court indicated that it would
issue ‘stay away orders.’ It [did] not state the stay away orders are a
condition of probation.” (citing N.T., 5/10/16, at 4) (emphasis added)).5
“The determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Atanasio, 997 A.2d 1181,
1183 (Pa. Super. 2010) (citation and brackets omitted)). “If no statutory
authorization exists for a particular sentence, that sentence is illegal and
____________________________________________
4The individuals were the complainant and two of Mansurov’s ex-girlfriends,
Luiza Ramazanova (“Ramazanova”) and Magdalena Zielinska (“Zielinska”).
5 In support of his claim, Mansurov cites the decision of this Court in
Commonwealth v. Mears, 972 A.2d 1210 (Pa. Super. 2009), wherein the
panel held that “the Pennsylvania Board of Probation and Parole has exclusive
authority to determine parole when the offender is sentenced to a maximum
term of imprisonment of two or more years[.] Therefore, any condition the
sentencing court purported to impose on Appellant’s state parole is advisory
only.” Id. at 1212 (emphasis added, citation and quotation marks omitted).
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subject to correction.” Commonwealth v. Hughes, 986 A.2d 159, 160 (Pa.
Super. 2009) (citation omitted).
Moreover, the Sentencing Code provides that, as a condition of
probation, a trial court may require a defendant to “satisfy any [] conditions
reasonably related to the rehabilitation of the defendant and not unduly
restrictive of his liberty ….” 42 Pa.C.S.A. § 9754(c)(13); see also
Commonwealth v. McBride, 433 A.2d 509, 510 (Pa. Super. 1981) (citing to
subsection 9754(c)(13) and explaining that an offender placed on probation
“does not enjoy the full panoply of constitutional rights otherwise enjoyed by
those who have not run afoul of the law.”) (citation and brackets omitted);
Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007) (stating
that probation is rehabilitative in design, protecting the interests of the public
as well as the defendant).
Initially, there is no merit to Mansurov’s claim that the trial court lacked
jurisdiction to impose the stay-away Order. Mansurov refers to the trial
judge’s remark made in imposing sentence that “when [Mansurov] comes out
on parole, he will need a stay away order.” Brief for Appellant at 33 n.4
(emphasis added by Mansurov) (purporting to quote the transcript from the
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sentencing hearing, N.T., 5/10/16, at 49).6 However, regardless of this
purported passing remark, the written sentencing Order, which states that the
court imposed the stay-away condition as part of Mansurov’s probation,
controls. See Commonwealth v. Borrin, 80 A.3d 1219, 1226-27 (Pa. 2013)
(stating that “[i]n Pennsylvania, the text of the sentencing order, and not the
statements a trial court makes about a defendant’s sentence, is determinative
of the court’s sentencing intentions and the sentence imposed.”).
Additionally, the stay-away condition of Mansurov’s probation was not
unduly restrictive, and was designed to rehabilitate him. In imposing the stay-
away Order, the trial court was mindful of Mansurov’s pattern of stalking and
invading the personal space of women, which included his two ex-girlfriends
(i.e., Ramazanova and Zielinska) who were covered under the stay-away
Order. Accordingly, the stay-away Order was reasonable, and specifically
tailored to (a) facilitate Mansurov’s recovery and rehabilitation; and (b)
provide for the safety of the public by preventing him from further harassing
the subject women. See, e.g., McBride, 433 A.2d at 510-11 (upholding the
trial court’s order that the defendant have no contact with the juvenile victim
whose morals he was convicted of corrupting, where it was reasonable and
____________________________________________
6 The transcript from the sentencing hearing is not contained in the electronic
record certified to this Court. See Commonwealth v. Lesko, 15 A.3d 345,
410 (Pa. 2011) (explaining that it is the responsibility of the appellant, not the
trial court, to provide a complete record for review, including any necessary
transcripts). Moreover, though Mansurov purports to have included a copy of
this transcript in his reproduced record, it is not contained therein.
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necessary to rehabilitate the defendant). Accordingly, Mansurov’s fourth issue
does not entitle him to relief.
In his final issue, Mansurov contends that the trial court abused its
discretion by imposing a manifestly excessive and unreasonable sentence.
See Brief for Appellant at 33-42. According to Mansurov, the trial court, in
imposing a sentence that is above the applicable sentencing guidelines, failed
to (a) consider Mansurov’s circumstances and rehabilitative needs; and (b)
state on the record reasons for the sentence imposed. See id. at 34-35.
Mansurov challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v. Hill, 66
A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has
preserved the sentencing challenge for appellate review by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1) include
in his brief a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence, pursuant to
Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code. Hill, 66
A.3d at 363-64.
Here, Mansurov included a Rule 2119(f) Statement in his brief. See
Brief for Appellant at 33-35. Moreover, his above-mentioned claims present
a substantial question for our review. See Commonwealth v. Macias, 968
A.2d 773, 776 (Pa. Super. 2009) (observing that “[t]he failure to set forth
adequate reasons for the sentence imposed has been held to raise a
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substantial question. Likewise, an averment that the court … failed to consider
all relevant factors raises a substantial question.”) (citations omitted);
Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. Super. 2008) (stating that
“[a] claim that the sentencing court imposed a sentence outside of the
guidelines without specifying sufficient reasons presents a substantial
question for our review.”).
Mansurov challenges as manifestly excessive the court’s sentence of
three to six years in prison, where the guideline range was restorative
sanctions to nine months. See Brief for Appellant at 37. But see also id.
(pointing out that the statutory maximum for a conviction of criminal trespass
is five to ten years in prison). Additionally, Mansurov maintains that “[d]uring
the [sentencing] hearing, the court failed to cite a single reason for its
sentence[.]” Id. at 39; see also id. at 42. Finally, Mansurov argues that the
sentencing court failed to take into account his particular circumstances,
character, and rehabilitative needs. Id. at 37.
We review discretionary aspects of sentence claims under the following
standard: “[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.” Commonwealth v. Fullin, 892 A.2d 843, 847
(Pa. Super. 2006). Moreover, the sentencing court has broad discretion in
choosing the range of permissible confinement that best suits a particular
defendant and the circumstances surrounding his crime. Commonwealth v.
Walls, 846 A.2d 152, 154-55 (Pa. Super. 2004).
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The Sentencing Code sets forth the considerations a trial court must
take into account when formulating a sentence, stating that “the court shall
follow the general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A.
§ 9721(b). Additionally, in every case where a sentencing court imposes a
sentence outside of the sentencing guidelines, the court must provide in open
court a contemporaneous statement of reasons in support of its sentence. Id.
When doing so,
a trial judge ... [must] demonstrate on the record, as a proper
starting point, its awareness of the sentencing guidelines. Having
done so, the sentencing court may deviate from the guidelines, if
necessary, to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the impact
on the life of the victim and the community, so long as it also
states of record the factual basis and specific reasons which
compelled it to deviate from the guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
and brackets omitted). However, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence[.]”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
Finally, when evaluating a challenge to the discretionary aspects of
sentence, it is important to remember that the sentencing guidelines are
purely advisory in nature. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118
(Pa. 2007); see also Commonwealth v. Walls, 926 A.2d 957, 963 (Pa.
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2007) (stating that “rather than cabin the exercise of a sentencing court’s
discretion, the [sentencing] guidelines merely inform the sentencing
decision.”).
Mansurov’s claim that the sentencing court did not state any reasons for
the sentence it imposed is belied by the record. In its Opinion, the trial court
explains that, at sentencing, it stated, inter alia, as follows prior to sentencing
Mansurov:
I’ll certainly put on the record the history of [Mansurov] and the
… the testimony of the officers[, and] the testimony of
[Mansurov’s] past domestic violence incidents that were
presented are an aggravating factor. I think the nature of this
case, the Prior Bad Acts that the [c]ourt admitted into evidence,
and witnesses -- I believe two witnesses that testified to Prior Bad
Acts, that certainly is a consideration. All of the testimony
presented at trial I think make the sentence appropriate. The
Prior Bad Acts, the testimony at trial, the testimony we heard
today from the officers, as well as [Mansurov’s] juvenile
incidents[,] and the other domestic violence incidents presented
that show a pattern by [Mansurov] of violating women and
physically attacking women and stalking women, has been
abundantly shown based on what was presented here today.
Trial Court Opinion, 7/14/17, at 15 (quoting N.T., 5/10/16, at 47). The trial
court further stated in its Opinion as follows: “Based on the findings of the
court, the aggravating factors grossly outweighed any mitigation. A standard
range sentence was not appropriate for the conduct of [Mansurov]. Therefore
the imposition of sentence in this case was proper and was adequately
explained on the record.” Trial Court Opinion, 7/14/17, at 15-16. We agree
with the trial court’s rationale and discern no abuse of its discretion in
imposing a sentence, above the guideline range, which was commensurate
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with the seriousness of the crime, Mansurov’s criminal history, and the danger
he posed to women and the community.
Moreover, the sentencing court had the benefit of a pre-sentence
investigation report (“PSI”). It is well settled that where a sentencing court
is informed by a PSI, “it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed.” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988)). Additionally, “[t]he sentencing judge
can satisfy the requirement that reasons for imposing sentence be placed on
the record by indicating that he or she has been informed by the [PSI]; thus
properly considering and weighing all relevant factors.” Ventura, 975 A.2d
at 1135 (citation omitted).
Because the sentencing court in the instant case had reviewed
Mansurov’s PSI, it is presumed that the court considered, inter alia, his
individualized circumstances and character. See Ventura, supra; see also
Commonwealth v. Sheller, 961 A.2d 187, 191-92 (Pa. Super. 2008)
(stating that the trial court did not abuse its discretion in imposing a sentence
beyond the aggravated range where the court considered the pre-sentence
investigation report, sentencing guidelines, protection of the public, and the
appellant’s rehabilitative needs). Thus, Mansurov’s final issue entitles him to
no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/18
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Circulated 04/03/2018 11:31 AM
IN THE COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0008729-2015
vs.
FILED
OZOD MANSUROV
JUL 1 4 2017
Records
OPINION office of Judicial Trial
Appeats/Post
NICHOLS, CAROLYN H., J. July 16, 2017
The Defendant, Ozod Mansurov, appeals from the judgement of sentence entered in the
Philadelphia County Court of Common Pleas, following his conviction for Criminal Trespass (18
Pa C.S.A. §3503 §§A1). The relevant facts and procedural history are as follows.
PROCEDURAL HISTORY
On May 14, 2015, Defendant was arrested and charged with Burglary (18 § 3502(a)(1)),
Intimidating a Witness (18 § 4952(a)(1)), Criminal Trespass (19 § 3503(a)(1), Theft by Unlawful
Taking (18 § 3921(a)), Receiving Stolen Property (18 § 3925(a)), Terroristic Threats with Intent
to Terrorize Another (18 § 2706(a)(1)), Stalking (18 § 2709.1(a)(1)), and Harassment (18 §
2709(a)(1). See, Bill of Information. Prior to trial, on February 1, 2016, the Commonwealth filed
a motion to introduce prior bad acts of the defendant under Pa.R.E. § 404(b). At the conclusion
of oral argument on February 10, 2016, the motion was granted. On February 16, 2016,
Defendant filed a motion for reconsideration of the court's 404(b) ruling. Defense counsel made
CP-51-CR-0008728-2015 Comm v Mansurov,
Ozod
Opinion
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oral argument on March 9, 2016, at which point the motion was denied and the matter proceeded
to trial. At the conclusion of the two-day trial on March 11, 2016, the jury found Defendant
guilty of criminal trespass. He was found not guilty on the charges of Burglary and Stalking, but
hung on the remaining charges, which the Commonwealth moved to nolle prosse. At that time,
sentencing was deferred to allow for preparation of a presentence investigation report. On May
10, 2016, Defendant was sentenced to three to six years state incarceration plus a three-year
probationary tail.
Defendant filed a timely Notice of Appeal with the Superior Court of Pennsylvania on
July 5, 2016. This court ordered Defendant to file a 1925(b) on July 12, 2016. After this court
granted Defendant an extension, Defendant timely filed a statement of matters on August 2,
2016.
FINDINGS OF FACT
After finishing work on May 2, 2015, Olena Horenska ("Ms. Horenska") returned to her
apartment at 2101 Winchester Avenue in Philadelphia, Pennsylvania. N.T. 3/10/16 at 24. At that
time, Ms. Horenska lived with two roommates: Fatima and her daughter, Elena. Id. at 20. In
addition, Elena's sister Luiza periodically visited the apartment, staying there when she fought
with Defendant, who was her boyfriend at the time. Id.
After arriving home from work, Ms. Horenska went to her bedroom to take a nap. Id. at
24. Some time later, she awoke to the sound of very loud knocking on the front door. Id. Ms.
Horenska went to the front door, where she heard the voice of Defendant, who she immediately
recognized as Luiza's boyfriend. Id. at 25. She informed Defendant that his girlfriend was not
there, and also explained that because she was alone in the home, she did not want to let him
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inside. Id. at 25. At that time, the front door was secured with two locks and a chain. Id. at 26.
However, Ms. Holenska soon noticed that door was "very close to open" and was only being
held closed by one chain. Id. Before Defendant could enter the home, Ms. Holenska ran to her
bedroom and closed her door. Id. Shortly thereafter, she heard Defendant going through each
area of the apartment, repeatedly asking where his girlfriend, Luiza, and her mother, Fatima, had
gone. Id. at 28.
Defendant approached the bedroom door and asked Ms. Horenska to open it; she asked
Defendant to promise that he would not hurt her; he obliged. Id, at 27. After opening the door,
Ms. Horenska stepped aside, and Defendant proceeded to check the closet and other areas where
people might potentially hide. Id. Throughout this exchange, he continued to ask Ms. Horenska
questions about when his girlfriend and her mother left and appeared to be "very angry." Id. Ms.
Horenska told Defendant that Luiza and her mother had left the country. Id. at 28. Defendant
asked her if she had called the police; she said that she did not, and offered to show Defendant
her phone so he could verify her claim. Id. He declined, but explained that if she did, she would
"have problems" and that he would kill her. Id.
During this exchange, Defendant was still in Ms. Holenska's bedroom, where the two
were standing only a few feet away. Id. Ms. Holenska testified that she felt very afraid, given that
Defendant "said he's going to kill me, he swears to God." Id. at 29. After finishing their
conversation in the bedroom, Defendant retreated to the living room, where he took two stuffed
animals from the corner and began to leave the apartment. Id. at 30. Ms. Holenska asked who
would fix the door; Defendant replied that it was not his problem, as she should have opened the
door for him. Id.
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At this point, Ms. Holenska observed that wooden door was crooked and could not be
closed completely. Id. at 31. There were also wooden pieces all over the surrounding area. Id.
Ms. Horenska went to the window overlooking the parking lot at the apartment building; she
observed Defendant getting into his car, then carelessly backing out and loudly accelerating as he
left the area. Id. At this time, Ms. Holenska testified that she sat down to cry before calling to ask
a friend if he could help repair the door, as she was too afraid to call the police. Id. After Ms.
Holenska's friend arrived, they contacted maintenance to ask whether the door could be fixed. Id.
at 32. They were informed that in order for maintenance to repair the door, they would need to
provide them with a police report; at this time, she contacted the police. Id. Following her
statement to police, Ms. Holenska was shown a series of photographs and was asked to make an
identification. Id. at 34. She identified Defendant. Id.
Ms. Holenska and her friend returned to the apartment, where maintenance was able to
- fix the door enough so it would close. Id. Ms. Holenska asked her friend to stay with her at the
apartment, as she did not feel safe there alone. Id. Sometime after midnight, Ms. Holenska heard
knocking on the front door. Id. She went to the bathroom (the room furthest from the front door)
and called 911; her friend went to the front door. Id. Through the bathroom window, Ms.
Holenska heard Defendant's voice in a very angry and loud tone. Id. at 35. At this point,
Defendant left and the police arrived, at which point Ms. Holenska provided the officer with a
statement. Id.
The following day, Ms. Holenska and her friend left the house at roughly 8:30am. Id. at
36. Upon her return later that afternoon, Ms. Holenska observed pieces of the wood door on the
ground. Id. She entered the apartment and tried not to touch anything; she noticed that the glass
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coffee table was broken, there were small pieces of glass on the floor, there was a broken mirror
hanging on the wall, and the apartment smelled like gas, even though all of the burners were off.
Id. At this point, Ms. Horenska made a third call to the police. Id. at 37. After giving the
responding officer a statement, Ms. 1-Tolenska then packed up her things and left the apartment to
relocate to another state. Id.
At trial, Kaleen Harrigan ("Ms. Harrigan") testified for the Commonwealth regarding an
incident that occurred on August 2, 2014 involving Defendant. Id. at 57. At that time, Ms.
Harrigan was living in the Blair Mill East Apartments in Horsham, Pennsylvania. Id. at 58. Ms.
Harrigan's unit was located on the bottom floor of the building and featured a patio, which was
directly below her upstairs neighbor's balcony. Id.
At some time in the afternoon on the date in question, Ms. Harrigan heard "extremely
loud banging" on the door of a nearby apartment unit. Id, at 59. She then witnessed Defendant
"get boosted up into the top apartment," at which point the glass door on the upstairs unit's
balcony was "ripped open." Id. Ms. Harrigan recognized Defendant as the boyfriend of her
upstairs neighbor, indicating that the two had a "huge fight" about a week prior to the incident.
Id. Ms. Harrigan stated that because it was the middle of the day, she knew her neighbor was not
at home, so she called the police. Id.
Officer Clarence Dickerson ("Officer Dickerson") also testified regarding the August
2014 incident, in which he responded to a call for a burglary while on duty for the Upper
Moreland Township Police Department. Id. at 63. Officer Dickerson knocked on the door of the
unit and stated that he was a police officer, but no ne answered. Id. at 66. At that point, he
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notified building maintenance of the situation and obtained a key to enter the property. Id. Once
inside, Officer Dickerson discovered Defendant in the shower. Id.
Magdalena Zielinska ("Ms. Zielinska") also testified regarding August 2014 incident. Id.
at 97. On that date, Ms. Zielinska was in a fight with Defendant and refused to answer his calls.
At the time of the incident, Ms. Zielinska was not home, but had received numerous phone calls
from Defendant, which she declined to answer. Id. Although Defendant had spent the night at the
apartment on at least one prior occasion, Ms. Zielinska stated that he never paid rent, nor did he
leave any personal items behind when he left. Id. at 100. She indicated that she did not give
Defendant keys to her apartment, nor did she give him permission to enter her apartment or
retrieve any items. Id. Additionally, she said there was no "normal" way of entering the
apartment other than through the front door; the only possible point of entry was to climb
through the balcony, as her unit at the time was on the second floor. Id.
MATTERS COMPLAINED OF ON APPEAL
1. The evidence was insufficient as a matter of law to find defendant, Ozod Mansurov guilty
of 18 Pa. C.S.A. § 3503, criminal trespass of a building and/or occupied structure as the
evidence failed to establish Mansurov was not privileged to enter the complainant's
apartment. Likewise, the evidence was insufficient to prove he gained entry to
complainant's home "by force, breaking, intimidation, unauthorized opening of locks or
through an opening not designed for human access."
2. The jury's finding of guilty on the charge of criminal trespass was against the great
weight of the evidence presented at trial as the testimony of the complainant was simply
not credible and should not have been accepted by the jury. The complainant did not
testify that she told Mansurov to leave.
3. The trial court erred in granting the Commonwealth of Pennsylvania's Motion to Admit
defendant, Ozod Mansurov's prior bad acts pursuant to Pennsylvania Rule of Evidence
404(b) involving an incident in Montgomery County as it was prejudicial and was sought
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to show defendant's propensity to commit the acts alleged in the case before this Court.
4. The trial court erred in denying defendant, Ozod Mansurov's Motion for a Mistrial during
the course of the trial proceedings. Counsel has requested a copy of the Notes of
Testimony from the Trial to Review, however, the trial notes have not been reproduced.
Therefore, counsel would request leave of court to amend this 1925(b) Statement upon
receipt of the Notes of Testimony with respect to the mistrial issue.
5. The trial court erred in granting a "stay away order" as to three (3) individuals and
against Mr. Mansurov as the court was without the legal authority to do s and the court
issued stay away order(s) for individuals who had no real relationship to the action. This
part of the sentence imposed by the court was illegal.
6. The trial court abused its discretion in sentencing defendant well outside the
Pennsylvania Sentencing guidelines and giving him a sentence of three (3) to six (6)
years when the guideline calculation was "restorative sanctions to nine (9) months plus or
minus three (3) months on the singular charge of criminal trespass and failed to articulate
the reason for the sentencing well outside of the guidelines which was excessive and
there was no rational basis for the sentences as well as being unreasonable.
7. The trial court erred in allowing two (2) police officers with no connection to the case
testify at the time of sentencing on grounds of hearsay and relevance and the erred in
allowing a letter to be read by a mother of the complainant which was clearly hearsay and
which she was not a victim and which was not a victim impact statement.
DISCUSSION
1. Sufficiency Claim - The evidence presented was sufficient to support the
efendant's conviction for criminal trespass.
When evaluating a sufficiency claim, the standard is whether, viewing all evidence and
reasonable inferences in the light most favorable to the Commonwealth, the factfinder
reasonably could have determined each element of the crime was established beyond a
reasonable doubt. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The Superior
Court considers all the evidence admitted, without regard to any claim that some of the evidence
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was wrongly allowed. Id. The Superior Court will not weigh the evidence or make credibility
determinations. Id. Moreover, any doubts concerning a defendant's guilt were to be resolved by
the fact finder, unless the evidence was so weak and inconclusive that no probability of fact
could be drawn from that evidence. Id.
The Commonwealth may meet its burden by proving a crime's elements with evidence
which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and
the weight to give the evidence produced, is free to believe all, part, or none of the evidence.
Commonwealth v. Riley, 811 A.2d 610, 614 (Pa. Super. 2002), quoting Commonwealth v. Brown,
701 A.2d 252, 254 (Pa. Super. 1997). Ultimately, "the test is whether the evidence, thus viewed,
is sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Whiteman, 485 A.2d
459, 462 (Pa. 1984).
To sustain a conviction for criminal trespass, the Commonwealth must prove that
Defendant entered premises, knowing that he was not licensed or privileged to do so. 18 Pa.C.S.
§3503; See also, Commonwealth v Goldsborough, 426 A.2d 126 (Pa. Super. 1981). It is a
defense to prosecution under this section if "the actor reasonably believed that the owner of the
premises, or other person empowered to license access thereto, would have licensed him to enter
or remain." 18 Pa.C.S.A. §3503(c)(3). However, "in most cases the Commonwealth will meet its
burden of proving that the defendant was not licensed or privileged to enter by having the owner
or occupant of the building testify that he or she did not give the defendant permission to enter."
Commonwealth v Knight, 419 A.2d 492, 500 (Pa. Super. 1980).
In the instant case, Defendant claims that the Commonwealth failed to demonstrate that
(1) he was not privileged to enter the complainant's apartment; and (2) that he gained entry to the
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home "by force, breaking, intimidation, unauthorized opening of locks or through an opening not
designed for human access." However, for the reasons that follow, these claims are without
merit.
First, it was established at trial that Ms. Horenska explicitly denied Defendant permission
to enter the apartment. Additionally, nothing in the record indicates that Defendant had a
reasonable belief that he was otherwise authorized to enter the apartment, as his only connection
to the unit was through his girlfriend Luiza, who was not a resident. Therefore, it is clear that
Defendant lacked the requisite authorization to enter the apartment unit, which necessarily
invalidates his argument regarding privilege.
Next, Defendant argues that there was insufficient evidence to show that he gained entry
to the home "by force, breaking, intimidation, unauthorized opening of locks or through an
opening not designed for human access." At trial, Ms. Horenska testified that after she denied
Defendant access to the residence, she noticed that the front door locks were close to open. Ms.
Horenska then ran and hid with the Defendant still outside the door and the door secured. During
that time, Defendant grew increasingly frustrated, eventually using some manner of force to
break through the front door (which was locked) and enter Ms. Horenska's home. The mere fact
that Defendant was in the apartment is enough to establish this element, as he was not authorized
to enter the residence.
II. Weight of the Evidence - The Trial Court's verdict was not against the weight of the
evidence.
The Defendant also claims that the verdict was against the weight of the evidence, as (1)
the complainant's testimony was not credible; and (2) the complainant did not ask Defendant to
leave. In reviewing a weight claim, the appellate court focuses solely on whether the trial court
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abused its discretion; it does not consider the underlying question of whether the verdict itself
was against the weight of the evidence. Commonwealth v Widmer, 744 A.2d 745, 751 (Pa.
2000). "Because the trial judge has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court's determination that the verdict is against the weight of
the evidence." Commonwealth v. Johnson, 910 A.2d, 60 (Pa. 2006).
A weight claim actually concedes sufficiency of the evidence, as the appellate court is to
focus only on quality of the trial court's discretion. Widmer, 744 A.2d at 751. Therefore, "[t]he
test is not whether the court would have decided the case in the same way, but whether the
verdict is so contrary to the evidence as to make the award of a new trial imperative so that right
may be given another opportunity to prevail." Commonwealth v. Whiteman, 485 A.2d 459, 462
(Pa. 1984). Accordingly, in order to reverse a trial court's ruling on a weight of evidence claim, it
"must determine that the verdict is so contrary to the evidence as to 'shock one's sense of
justice.- Commonwealth v. Hitner, 910 A.2d 721, 733 (Pa. Super. 2006).
In the instant case, several witnesses testified for the Commonwealth as to their
observations of the condition of the front door. Although Defendant proffered a witness who
stated that the apartment door sustained no noticeable damage, it was unclear whether the
witness fully understood the questions that were asked during either direct or cross examination.
Although the witness initially stated that he had observed Defendant entering the unit with a key
on several occasions, cross-examination and redirect examination revealed that the witness was
referring to Defendant's key to the front door of the multi -unit apartment building. Given the fact
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that Defendant's family also lived in the building, this was not probative of Defendant's rightful
access to Ms. Horenska's apartment.
III. The Commonwealth's Motion to Introduce Prior Bad Acts was properly granted, as
the evidence was relevant to show Defendant's lack of mistake.
Evidentiary rulings are within the sound discretion of the trial court and should not be
reversed absent a clear abuse of discretion. Commonwealth v. Reefer, 393 Pa. Super. 193, 573
A.2d 1153, 1154 (1990) (citation omitted). The decision whether to admit or exclude evidence
lies within the sound discretion of this Court, which is not subject to reversal except for abuse of
that discretion. Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421, 431 (1994). An abuse of
discretion is not merely an error in judgment but a gross misapplication of the law, manifestly
unreasonable judgment, or demonstrable bias or partiality. Commonwealth v. Kublac, 550 A.2d
219, 223 (1988).
Relevant evidence of other crimes or bad acts committed by the defendant are admissible
as long as they are for a purpose other than propensity to commit crime. Commonwealth v.
Brown, 342 A.2d 84 (Pa. 1972). Under the Pennsylvania Rules of Evidence §404(b)(2),
"evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.
Additionally, if such evidence is found relevant and its uses is for the purpose other than showing
a propensity to commit crime, its probative value must outweigh its potential prejudice. Pa.R.E.
§404(b)(3).
Evidence of other crimes is admissible to show the defendant's actions were not the result
of a mistake or accident "where the manner and circumstance of the two crimes are remarkably
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similar." Commonwealth v. Tyson, 119 A.3d 353 at 359 (Pa. Super. 2015). In its motion, the
Commonwealth cites to the Tyson case, in which the Superior Court found that the trial court
should have admitted prior act evidence of the defendant committing a rape in the prosecution of
another rape; in so holding, the court noted similarities between the crimes including that the
defendant was acquainted with both victims, who were both black females in their 20s, that he
was a guest in their home, that both victims were in a weakened or compromised state, that both
victims lost consciousness and that both awoke to the defendant having vaginal intercourse with
them Id. at 360.
In the instant case, Defendant argues that the evidence was inadmissible as it was (1)
prejudicial; and (2) was used solely for the purpose of demonstrating propensity. For the reasons
that follow, these points are without merit.
First, Defendant claims that the evidence is prejudicial, which would necessarily render it
inadmissible. However, this is clearly not the case. In ruling on the admissibility of evidence, the
test is not whether it is prejudicial; instead, the test is whether the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice. Here, the court found that the
probative value of the evidence outweighed any prejudicial effect.
Next, Defendant claims that the evidence itself was admitted for the improper purpose of
showing Defendant's propensity. However, the prior bad acts evidence was admitted not to show
propensity, but to establish Defendant's lack of mistake. The accusations by Ms. Harrigan and
Ms. Horenska serve to clearly demonstrate this principle. First, the incidents occurred nine
months apart, with the second taking place only five days after Defendant pled guilty to the
charges in the initial case. Not only were the two incidents close in time, but they were also
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similar in character. In both instances, Defendant targeted ex -girlfriends who were not at home
when he arrived to break into their respective residences. The ex -girlfriends were both young
females, as were the witnesses to the illegal entries in both cases. Also, in both instances,
Defendant not only forcibly entered the premises, but engaged in varying degrees of evasion
from law enforcement, hiding in the shower in one instance and actually running away from the
scene in the other. Therefore, the admission of the prior acts by Defendant was properly
admitted.
IV. Defendant's claim that the court erred by denying the Motion for a Mistrial is too
vague and does not comport with Pa.R.A.P. 1925(B)(4).
Rule I 925(b)(4)(ii) provides, "The Statement shall identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent issues for the
judge.... Pa.R.A.P. 1925(b)(4)(ii). Rule 1925 is "intended to aid trial judges in identifying and
focusing on those issues which the parties plan to raise on appeal." Commonwealth v. Dowling,
778 A.2d 683, 686 (Pa. Super 2001), (citation omitted). "Rule 1925 is thus a crucial component
of the appellate process." Id.
When a court has to guess what issues an appellant is appealing, that is not enough for
meaningful review. When an appellant fails adequately to identify in a concise manner
the issues sought to be pursued on appeal, a trial court is impeded in its preparation of a
legal analysis which is pertinent to those issues.
Dowling, 778 A.2d at 686 (internal citations omitted). Commonwealth v. Dowling, 778 A.2d 683
(Pa. Super. 2001). When challenging the sufficiency of the evidence on appeal, the Appellant
must specify which elements of the charge were not proven by a sufficiency of the evidence.
Commonwealth v Gibbs, 2009 Pa. Super. 181, 981 A.2d 274, 281 (2009).
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In the instant case, the Defendant does not cite with any specificity what aspect of the
evidence presented was insufficient to find him guilty of Intimidation of a Witness. Additionally,
he does not identify which element of the charge was not proven beyond a reasonable doubt with
the evidence presented. Therefore Appellant's claim challenging the sufficiency of the evidence
was not properly preserved and is waived.
The trial court did not commit any error at sentencing.
It is well -settled that challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as a matter of right. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011). Accordingly, before a discretionary challenge can be reviewed by an appellate court, the
defendant must satisfy a four-part test (1) whether the appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider
and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not appropriate under the Sentencing
Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). In the instant case,
Defendant filed a timely notice of appeal. He also included in his brief a concise statement of
reasons relied upon for allowance of appeal with respect to the discretionary aspects of his
sentence. Therefore, the only issue is whether Defendant has raised a substantial question.
A. The trial court was within its discretion to impose a stay-away order as a term of
Defendant's probation.
"The court may impose probation, including 'such reasonable conditions as it deems
necessary to insure or assist the defendant in leading a law-abiding life' including those
conditions 'related to the rehabilitation of the defendant and not unduly restrictive of his liberty
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or incompatible with his freedom f conscience." 42 Pa.C.S.A. § 9754(b), (c)(13).
Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013). Court imposed conditions, however, cannot
"exceed the maximum term for which the defendant could be confined." 42 Pa.C.S.A. § 9754(a).
In the instant case, Defendant was found guilty of Criminal Trespass, which carries a
minimum guideline sentence of RS -9 +/- 3 and a maximum statutory limit of 10 years.
Accordingly, Defendant was sentenced to 3-6 years state incarceration to run consecutively with
a three-year probationary period, which included the stay -away order as a condition of his
probation. Therefore, even at the maximum, Defendant's aggregate sentence would amount to a
period of up to nine years.
Notwithstanding Defendant's assertion the contrary, the record clearly indicates that the
court articulated the reasons for imposition of the aggravated sentence at sentencing. The court
explained: certainly put on the record the history of the defendant and the -- presented today,
the testimony of the officers the testimony of his past domestic violence incidents that were
presented are an aggravating factor. I think the nature of this case, the Prior Bad Acts that the
Court admitted into evidence, and witnesses -- I believe two witnesses that testified to Prior Bad
Acts, that certainly is a consideration. All of the testimony presented at trial I think make the
sentence appropriate. The Prior Bad Acts, the testimony at trial, the testimony we heard today
from the officers, as well as the juvenile incidents and the other domestic violence incidents
presented that show a pattern by the defendant of violating women and physically attacking
women and stalking women, has been abundantly shown based on what was presented here
today. N.T. 5/10/17 at 47. Based on the findings of the court, the aggravating factors grossly
outweighed any mitigation. A standard range sentence was not appropriate for the conduct of the
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Defendant in the present case. Therefore the imposition of sentence in this case was proper and
was adequately explained on the record.
B. Admissibility of hearsay evidence at sentencing was proper.
Defendant next challenges the admissibility f hearsay evidence at sentencing. The
admissibility of hearsay evidence at a sentencing hearing is a general and standard practice in the
Commonwealth of Pennsylvania. Cownonwealth Y Medley, 725 A.2d 1225, 1230 (Pa. Super.
1999). Nearly every sentencing proceeding that occurs in the Commonwealth involves hearsay
evidence in the form of a presentence investigation report. The objection by the Defendant is
wholly without merit with regard to the admissibility of hearsay evidence at sentencing.
Therefore the issues raised by the Defendant with regard to the sentencing hearing are
without merit and the sentence of this court should be upheld.
CONCLUSION
For the foregoing reasons, Defendant's appeal should be denied and the judgment f this
court affirmed.
BY THE COURT:
VAROLYN H. NICHOLS, J.
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