Com. v. Aybar, C.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTIAN AYBAR,
Appellant No. 1224 MDA 2014
Appeal from the PCRA Order Entered June 23, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005201-2009
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 14, 2016
Appellant, Christian Aybar, appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 Appellant
challenges the legality of his sentence, as well as the effectiveness of his
trial and direct appeal counsel. After careful review, we vacate the order
denying PCRA relief and remand for further proceedings consistent with this
memorandum.
The following is a factual summary issued by this Court in the
memorandum affirming Appellant’s judgment of sentence on direct appeal:
On the evening of November 4, 2009, [A]ppellant shot
Cory Washington (“the victim”) outside of [A]ppellant’s house in
West Reading, Pennsylvania. The victim fled the scene.
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1
42 Pa.C.S. §§ 9541-9546.
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Appellant then called 911 at approximately 7:22 p.m. to report
the shooting. While [A]ppellant was still speaking with the 911
operator waiting for the authorities to arrive, the West Reading
police directed nearby officers investigating the reported
shooting to [A]ppellant’s location on the street outside of his
house.
Detective Joseph M. Brown proceeded to pat down
[A]ppellant for weapons. Appellant informed the detective at
this time that he was carrying a weapon on his person; Detective
Brown then confiscated a semiautomatic firearm from
[A]ppellant. Appellant also told the officer “the gun used in the
shooting was in his residence, and that he shot the person in
self-defense.”
At that time, [A]ppellant identified Cory Washington as the
man he shot. After placing [A]ppellant in a police car, the
officers proceeded to forcibly enter [A]ppellant’s residence
without a warrant. Detective Brown testified the purpose of
entering the residence was to secure the victim [who was]
believed [to] possibly [be] inside, and to prevent the possible
destruction of the firearm involved in the shooting. At this point,
the victim was actually in police custody in the nearby City of
Reading. The officers on scene at [A]ppellant’s apartment then
proceeded to sweep the premises, and secure the residence until
the arrival of the search warrants.
That initial search, and the subsequent search with a
warrant, led to the recovery of a large quantity of evidence; the
most relevant of which was a substantial quantity of marijuana,
packaging material, scales, plastic bags, the Rossi .38-caliber
revolver used to shoot the victim, and a portable safe holding
recordkeeping materials inside.
On March 21, 2011, a jury trial commenced. Appellant
was convicted on March 23, 2011[,] of the aforementioned
crimes,[2] and was sentenced on April 29, 2011[,] to five-and-a-
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2
Appellant was acquitted of two counts of aggravated assault, 18 Pa.C.S. §§
2702(A)(1), (4). He was found guilty of one count of possession with intent
to deliver a controlled substance (PWID), 35 Pa.C.S. § 780-113(a)(30); one
count of possessing an instrument of crime (PIC), 18 Pa.C.S. § 907(a); two
counts of simple assault, 18 Pa.C.S. §§ 2701(a)(1) and (2); one count of
(Footnote Continued Next Page)
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half to seven years’ incarceration plus five years’ probation, in
addition to an order of restitution for $16,633.17. The
Commonwealth’s restitution request was for the outstanding
“medical bill owed to the Reading Hospital for the services
received by Cory Washington.”
On May 9, 2011, [A]ppellant filed a timely motion for post-
trial relief seeking arrest of judgment, reconsideration of the
court’s pretrial suppression ruling or a judgment of acquittal
under [Pa.R.Crim.P. 720(B)]. The trial judge vacated the initial
sentence on May 11, 2011, pending a hearing on the post-trial
motion. A hearing occurred on August 3, 2011, and on August
8, 2011, the trial court denied [A]ppellant’s motion for post-trial
relief. Also, on August 8, 2011, the sentences of April 29,
2011[,] along with the order for restitution were reinstated.
Commonwealth v. Aybar, No. 1540 MDA 2011, unpublished memorandum
at 1-4 (Pa. Super. filed December 6, 2012) (citations to the record omitted).
Appellant filed a timely direct appeal with this Court, and we affirmed.
See id. He did not file a petition for permission to appeal to our Supreme
Court. On November 25, 2013, Appellant filed a timely PCRA petition, which
the PCRA court dismissed on June 23, 2014. Subsequently, Appellant filed
two duplicate pro se notices of appeal on July 21, 2014, and July 23, 2014,
which were consolidated by the PCRA court. Appellant complied with the
order to file a Pa.R.A.P. 1925(b) statement and, on August 21, 2014, the
PCRA court issued its Rule 1925(a) opinion. On appeal, Appellant presents
four issues for our review, which we paraphrase as follows:
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(Footnote Continued)
recklessly endangering another person (REAP), 18 Pa.C.S. § 2705; one
count of possession of a controlled substance, 35 Pa.C.S. § 780-113(a)(16);
and one count of possession of drug paraphernalia, 35 Pa.C.S. § 780-
113(a)(32).
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1. Whether the trial court erred in denying Appellant’s PCRA
petition where Appellant’s right to a jury trial was violated
because the mandatory sentencing factor was not determined
by the fact-finder beyond a reasonable doubt.
2. Whether the court erred in denying Appellant’s PCRA petition
where all prior counsel were ineffective for failing to litigate a
motion to suppress and/or failing to properly preserve this
issue for a PCRA petition.
3. Whether trial and appellate counsel were ineffective for failing
to challenge the sufficiency of the evidence with regard to the
PWID, REAP, and PIC convictions because the Commonwealth
did not prove that Appellant exercised constructive possession
over the items.
4. Whether trial and appellate counsel were ineffective for failing
to challenge the sentence in this matter with regard to the
excessiveness of the sentence imposed.
See Appellant’s Brief, at 5.
After Appellant and the Commonwealth filed their briefs, this case was
certified for en banc review by this Court, acting sua sponte, in relation to
the first issue above. See Order, 10/26/15, at 1-2. Specifically, the parties
were directed to answer the question: “Whether the PCRA petitioner is
entitled to relief when he raises, in a timely PCRA petition, a claim that his
sentence is illegal pursuant to Alleyne v. United States, ___ U.S. ___, 133
S.Ct. 2151 (2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc)?” Id. at 1. Subsequently, Appellant filed an
Amended Brief on December 16, 2015, and the Commonwealth filed a
Substituted Appellee’s Brief on January 6, 2016.
“Our standard of review for an order denying post-conviction relief
looks to whether the PCRA court’s determination is supported by the record
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and whether it is free of legal error.” Commonwealth v. Treadwell, 911
A.2d 987, 989 (Pa. Super. 2006) (citations omitted). The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record. Id.For ease of disposition, we address Appellant’s claims out of the order
in which they were presented. We begin with Appellant’s ineffective
assistance of counsel claims.
Failure to Suppress and Preserve a Suppression Claim
Appellant argues that trial and/or direct appeal counsel were
ineffective for failing to file and subsequently preserve a suppression claim
regarding the seizure of evidence during the warrantless search of
Appellant's home.3 To make out a successful ineffectiveness claim, a
defendant must plead and prove that his counsel's performance was
deficient and that the deficient performance prejudiced the defense.
Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007) (citing
Strickland v. Washington, 466 U.S. 668 (1984)); Commonwealth v.
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3
Although the PCRA court deemed this issue waived based on Appellant’s
failure to raise the issue on direct appeal, Appellant claims that, because
collateral matters are reserved for PCRA petitions, the issue is not waived.
See Commonwealth v. Stollar, 84 A.3d 635, 651-52 (Pa. 2014). We
agree; Appellant was not obligated to raise an ineffectiveness claim on direct
review and, therefore, he has not waived the claim due to direct appeal
counsel’s failure to raise it. Nevertheless, despite the PCRA court’s error in
this regard, “[w]e may affirm a PCRA court's decision on any grounds if it is
supported by the record.” Commonwealth v. Burkett, 5 A.3d 1260, 1267
(Pa. Super. 2010).
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Pierce, 786 A.2d 203, 213 (Pa. 2001) (articulating that an ineffective
assistance of counsel claim must show that (1) the underlying claim is of
arguable merit; (2) counsel’s performance lacked a reasonable basis; and
(3) the ineffectiveness of counsel caused the petitioner prejudice). Here, in
order to demonstrate prejudice, Appellant must show a reasonable
probability that, had counsel challenged the evidence, the results of the trial
would have been different. Commonwealth v. Spotz, 84 A.3d 294, 312
(Pa. 2014).
Our review of Appellant’s claim is potentially inhibited due to the
procedural history of this case. The PCRA court rejected this claim based on
its conclusion that Appellant had waived this matter by not raising it in his
direct appeal. The court explains:
Initially, [Appellant] argues that he is entitled to PCRA
relief under 42 [Pa.C.S.] § 9543(a)(2)(ii) based on pretrial
counsel's failure to file a timely suppression motion. The Court
believes that [Appellant] has waived this issue by abandoning it
on [direct] appeal. "To be eligible for [PCRA] relief...the
petitioner must plead and prove by a preponderance of the
evidence...that the allegation of error has not been previously
litigated or waived." 42 [Pa.C.S.] § 9543(a)(3). "[A]n issue is
waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding." 42 [Pa.C.S.] § 9544(b).
Because the Court addressed the issue of pretrial counsel's
alleged ineffectiveness in denying [Appellant]'s motion for post
trial relief, [Appellant] had the obligation to raise and pursue this
issue on direct appeal. The general rule is that "a defendant
'should wait to raise claims of ineffective assistance of trial
counsel until collateral review.'" Commonwealth v. Bomar,
826 A.2d 831, 853 (Pa. 2003) (quoting Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002)). However, an exception
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has been recognized whereby a defendant can raise claims of
ineffectiveness of counsel on direct review where said claims
were presented to and addressed by the trial court. Bomar, 813
A.2d at 853-55.
[Appellant]'s motion for post trial relief raised the issue of
pretrial counsel's ineffectiveness for failing to file a timely
suppression motion. In fact, [Appellant]'s motion specifically
requested that the Court hold a hearing to address this issue,
which the Court did on August 3, 2011. (N.T., Post Sentence
Motion Hearing, 8/3/11).
…
By denying the [Appellant]'s motion for post trial relief, the
Court addressed the issue of pretrial counsel's effectiveness.
[Appellant] raised this issue in his Concise Statement. However,
[Appellant] failed to present this issue in his appellate brief.
(See Superior Court Memorandum, dated December 6, 2012,
filed March 26, 2013, at 4). Thus, [Appellant] abandoned
consideration of his ineffective assistance issue and the issue is
considered waived for purposes of the PCRA.
PCRA Court Memorandum Opinion, 8/25/14, at 8-9 (incorporating the PCRA
court’s Pa.R.Crim.P. 907 Order and Notice of Intent to Dismiss).
Appellant asserts that the claim has not been waived because he was
not required to raise the collateral matter of counsels’ ineffectiveness on
direct appeal. We agree.
In Commonwealth v. Stollar, 84 A.3d 635 (Pa. 2014), the defendant
raised ineffectiveness claims during the penalty phase of his capital trial.
The trial court held a hearing and ultimately disposed of them. When
appellant attempted to challenge the denial of those claims in his
subsequent direct appeal, under the auspices of the Bomar exception to
Grant, our Supreme Court dismissed them without prejudice to the
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defendant’s ability to raise them on collateral review. Stollar, 84 A.3d at
652. The Stollar Court stated:
For more than ten years, this Court has applied the rule
that claims of ineffectiveness of counsel must be raised on
collateral review, not on direct appeal. See []Grant, [] 813
A.2d [at] 738[]. However, an exception arose under our case
law premised upon the supposition that when the relevant
ineffectiveness claims have been properly raised and preserved
in the trial court, the trial court holds a hearing on those claims,
and the trial court addresses the merits of the claims in a
subsequent opinion, these ineffectiveness claims may be
reviewed on direct appeal pursuant to the so-called “Bomar
exception.” See Commonwealth v. Rega, 593 Pa. 659, 933
A.2d 997, 1018 (2007); []Bomar, []826 A.2d [at] 853–55[.]
Significant criticisms of the extent of the use of the
“Bomar exception” raised questions concerning the
appropriateness of its continued viability. Those questions have
now been definitively answered in our recently filed case,
Commonwealth v. Holmes, ––– Pa. ––––, 79 A.3d 562(2013). Specifically, we relevantly held in that case:
Grant's general rule of deferral to PCRA review remains
the pertinent law on the appropriate timing for review of
claims of ineffective assistance of counsel; we disapprove
of expansions of the exception to that rule recognized in
Bomar; and we limit Bomar, a case litigated in the trial
court before Grant was decided and at a time when new
counsel entering a case upon post-verdict motions was
required to raise ineffectiveness claims at the first
opportunity, to its pre-Grant facts. We recognize two
exceptions, however, both falling within the discretion of
the trial judge. First, we appreciate that there may be
extraordinary circumstances where a discrete claim (or
claims) of trial counsel ineffectiveness is apparent from the
record and meritorious to the extent that immediate
consideration best serves the interests of justice; and we
hold that trial courts retain their discretion to entertain
such claims. [ ]
Second ... where the defendant seeks to litigate multiple or
prolix claims of counsel ineffectiveness, including non-
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record-based claims, on post-verdict motions and direct
appeal, we repose discretion in the trial courts to entertain
such claims, but only if (1) there is good cause shown, and
(2) the unitary review so indulged is preceded by the
defendant's knowing and express waiver of his entitlement
to seek PCRA review from his conviction and sentence,
including an express recognition that the waiver subjects
further collateral review to the time and serial petition
restrictions of the PCRA.
Id. at 563–4.
Stollar, 84 A.3d at 651-52 (footnote omitted).
Instantly, the trial court relied on the Bomar exception when it
concluded that Appellant abandoned an ineffectiveness claim he ostensibly
could have raised on direct appeal. As detailed above, the Bomar exception
is no longer applicable in so far as it departs from the dictates of Holmes.
Furthermore, there is nothing in the record that indicates satisfaction of
Holmes’ requirements so as to permit review of Appellant’s ineffectiveness
claim on direct appeal. Thus, we reject the trial court’s conclusion that
Appellant waived his suppression-related ineffectiveness claims by failing to
raise them in his direct appeal. Appellant cannot be faulted for failing to
litigate a claim on direct appeal when he was not permitted to do so.
Despite the PCRA court’s error in this regard, “[w]e may affirm a PCRA
court's decision on any grounds if it is supported by the record.” Burkett, 5
A.3d at 1267. Accordingly, we turn to consider Appellant’s suppression-
related ineffectiveness claim(s). As to Appellant’s claim that his direct
appeal counsel was ineffective for failing to litigate this claim on direct
appeal, we conclude that claim is meritless. As Appellant did not comply
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with Holmes when he litigated his suppression-related ineffectiveness claim
via a post-sentence motion, his direct appeal counsel would not have been
permitted to raise that claim. Consequently, direct appeal counsel’s failure
to raise trial counsel’s ineffectiveness on direct appeal did not prejudice
Appellant, as Appellant is permitted to raised trial counsel’s ineffectiveness
via his current PCRA petition.
As to Appellant’s claim that trial counsel was ineffective for failing to
file a suppression claim on his behalf, we note that we lack the lower court’s
analysis of this claim. Although the trial court held a post-sentence motion
hearing, at which trial counsel testified regarding why he failed to file a
suppression motion, the trial court did not issue an opinion specifically
addressing that claim when it collectively denied Appellant’s post-sentence
motions without any specific comments regarding the court’s rationale for
doing so. See Order (Denying Post-Sentence Motions), 8/8/11, at 1-2.
Furthermore, although Appellant did raise the suppression-related
ineffectiveness claim in the Rule 1925(b) statement that he filed on direct
appeal, the trial court’s Rule 1925(a) opinion dismissed that claim as
“waived and without merit” because direct appeal counsel failed to provide a
transcription of the post-sentence motion hearing. See Trial Court Rule
1925(a) Opinion, 10/31/11, at 12. Moreover, as noted above, the PCRA
court did not review Appellant’s suppression-related ineffectiveness claim
beyond its incorrect waiver analysis.
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However, this Court can ascertain from the now-available transcript of
the post-sentence motion hearing, and from elsewhere in the certified
record, that the trial court determined, and we agree, that Appellant
satisfied the arguable merit prong of his ineffectiveness claim.4 We can also
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4
The trial court granted a post-sentence motion hearing premised on the
fact that there appeared to be “sufficient information” that would have
justified trial counsel’s filing a timely suppression motion, such that it “put[]
at issue the effectiveness of counsel in not filing … a timely motion to
suppress.” N.T., 8/3/11, at 4-5. Similarly, in the order denying Appellant’s
attempt to file an untimely suppression motion, the trial court stated: “it’s
clear to the [c]ourt that the Probable Cause Affidavit contained information
which arguably could form a basis for a [m]otion to [s]uppress….” Order,
2/8/11, at 1 (single page).
We agree that the arguable merit prong is satisfied. It is not in
dispute that the police required exigency to enter Appellant’s home without a
warrant, and there is no evidence of record indicating that Appellant
consented to the entry. Indeed, Appellant’s testimony at the post-sentence
motion hearing was wholly inconsistent with having consented to the search,
as is the fact that the police sought and acquired a search warrant after the
initial search. Thus, at issue in any motion to suppress would have been
whether there was the requisite exigency to justify the police’s entering
Appellant’s home without a warrant.
The Commonwealth asserts the applicable exigent circumstance was
that the police believed Appellant’s victim or victims might have been in
Appellant’s home when they entered without a warrant. If the police could
reasonably believe that a person inside the residence was in need of
immediate aid, the warrantless search is excused. See Commonwealth v.
Davido, 106 A.3d 611, 625 (Pa. 2014) (holding a warrantless entry was
justified by exigency when police possessed a “reasonable belief that a
victim would be found inside who needed immediate police assistance”).
However, the Commonwealth’s claim of exigency is inconsistent with
the fact that Appellant self-reported the shooting and told the police that the
victim had fled the scene in a gold van. N.T., 8/3/11, at 19. Clearly, this
fact could have undermined the Commonwealth’s ability to meet their
(Footnote Continued Next Page)
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ascertain from the record that the prejudice prong of Appellant’s
suppression-related ineffectiveness claim is easily satisfied because, had his
suppression claim been granted, it would be nearly impossible for the
Commonwealth to have moved forward with the drug-related charges.
Thus, the only issue in dispute is whether trial counsel had a reasonable
basis for not filing a suppression motion on Appellant’s behalf.
At the post-sentence motion hearing, trial counsel, Daniel Emkey,
Esq., stated that he did not file a suppression motion on Appellant’s behalf
because Appellant specifically directed him not to do so. N.T., 8/3/11, at 9.
Emkey claimed that the district attorney had offered favorable plea terms
that would have been taken off the table if Appellant filed a suppression
motion. Emkey claimed that Appellant told him not to file a suppression
motion in order to preserve that offer. Emkey also stated that he had
advised Appellant that a motion to suppress was unlikely to be successful
because he believed that exigency – in this case the need to search for
injured victims – justified the warrantless entry. Id. at 8.
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(Footnote Continued)
burden to establish exigency at a suppression hearing. If the police had no
reasonable belief that the sole victim was still in the immediate vicinity of
Appellant’s home, and/or no reasonable belief that there were multiple
victims of the shooting, then the initial search of Appellant’s home was
conducted in the absence of exigent circumstances. Moreover, the yield of
the subsequently obtained warrants, warrants based on the discovery of
contraband during the warrantless search, would also be suppressible as
fruit of the poisonous tree.
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However, there is no evidence of record supporting Emkey’s claim that
any plea deal had been offered by the Commonwealth, nor is there any
evidence of record indicating that any such plea deal was conditional upon
Appellant’s declining to file a suppression motion. Id. at 21. Moreover,
Appellant’s testimony directly contradicted Emkey’s. Appellant stated that
he raised the matter of the police’s warrantless entry into his home from the
very first discussion with his attorney. Id. at 43. Subsequently, Appellant
“mentioned to him about the suppression hearing at least four, five, six
times, maybe more.” Id. at 47. Appellant also stated:
[Emkey] would give me two different reasons why not to file
one. The first reason was because he assumed what the police
would say, and they would back each other up. And the second
reason was because he claimed that I had shot [the victim] in
the back and that the DA said that if I fight the case, that he …
was going to amend attempted murder to my charges.
Id.
Regarding Emkey’s testimony, Appellant was asked, “did you ever tell
him not to file a suppression motion?” Id. at 48. He answered, “[n]ever.”
Id. Appellant was also asked: “Did you ever tell him you would take a plea
to the charges?” Id. He answered: “Never.” Id.
Clearly, the reason for counsel’s failure to file a suppression motion,
and the reasonableness of that inaction, is dependent on the credibility of
Appellant’s and Emkey’s respective testimonies as they relate to the
evidence of record. Unfortunately, no such credibility determinations have
been made; at least, no such credibility determinations have been
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documented by the lower court. As such, we cannot determine whether
Appellant is entitled to relief without further input from the PCRA court.
Accordingly, we vacate the order denying Appellant’s PCRA petition and
remand for a determination of whether trial counsel had a reasonable basis
for his failure to file a suppression motion on Appellant’s behalf and, if
necessary, to hold a hearing to assist in that determination.
Sufficiency of the Evidence
Appellant also contends that his trial and direct appeal counsel were
ineffective in failing to challenge the sufficiency of the evidence. We begin
with the first prong of the ineffectiveness test: whether there is arguable
merit to the underlying sufficiency claims. A sufficiency claim alleges that
the evidence admitted at trial failed to establish all the elements of a crime
beyond a reasonable doubt. See Commonwealth v. Mobley, 14 A.3d 887,
889-890 (Pa. Super. 2011).
Here, Appellant posits that a common element to PWID, REAP, and
PIC, is the exercise of constructive possession over the items. See
Commonwealth v. Chenet, 373 A.2d 1107 (Pa. 1977). Constructive
possession is a judicially created doctrine that permits an inference of
control over illegal items, although actual possession at the time of arrest
cannot be shown. Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa.
Super. 2014). Appellant submits that this element was not satisfied, and
that in not raising the issue before the trial court or on appeal, his trial and
direct appeal counsel were ineffective.
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This is not a situation where mere presence at a scene established
conscious dominion over items. Cf. Commonwealth v. Fortune, 318 A.2d
327, 328 (Pa. 1974). Rather, the theory of the defense’s case never
disputed possession, as Appellant admitted control directly. The element of
constructive possession of the items was established by Appellant’s own
testimony when he stated that the marijuana was his and that he intended
to sell a portion of it to a friend. N.T., 3/22/11, at 398, 412-416.
Constructive possession, in regard to the firearm, was established when
Appellant testified that he shot the victim with the gun that was found in his
apartment. Id. at 296.
As such, the underlying sufficiency claim is without merit; therefore,
this claim fails. Accordingly, we conclude that the PCRA court’s denial of
Appellant’s PCRA petition on this ground is supported by the record and free
of legal error.
Challenge to the Discretionary Aspects of the Sentence
Appellant also claims that trial counsel was ineffective for failing to
challenge the discretionary aspects of his sentence and, likewise, that his
direct appeal counsel was ineffective for failing to raise that claim on direct
appeal. Appellant believes that “the trial court did not give proper weight to
his lack of criminal history, family history, family background[,] and facts in
the case when” it sentenced Appellant “to the extra year imposed by the
court to run consecutively to the flat five year mandatory sentence on the
PWID” charge. Appellant’s Brief, at 28-29.
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Challenges to the discretionary aspects of sentencing are reviewed for
abuse of discretion. See Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007). When reviewing for an abuse of discretion in sentencing, we apply
the following standards:
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:
[W]e 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, 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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). 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, 574 Pa. 759, 831 A.2d 599 (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.
***
An allegation that the sentencing court failed to consider
certain mitigating factors generally does not necessarily raise a
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substantial question. Commonwealth v. McNabb, 819 A.2d
54, 57 (Pa. Super. 2003). Accord Commonwealth v. Wellor,
731 A.2d 152, 155 (Pa. Super. 1999) (reiterating allegation that
sentencing court “failed to consider” or “did not adequately
consider” certain factors generally does not raise substantial
question). Compare Commonwealth v. Felmlee, 828 A.2d
1105, 1107 (Pa. Super. 2003) (en banc) (stating substantial
question is raised, however, where appellant alleges sentencing
court imposed sentence in aggravated range without adequately
considering mitigating circumstances).
“When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa. Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198(2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant's prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Where
the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
“was aware of relevant information regarding the defendant's
character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
2005) (stating if sentencing court has benefit of PSI, law expects
court was aware of relevant information regarding defendant's
character and weighed those considerations along with any
mitigating factors). Further, where a sentence is within the
standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d
536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(stating combination of PSI and standard range sentence, absent
more, cannot be considered excessive or unreasonable).
Although Pennsylvania's system stands for individualized
sentencing, the court is not required to impose the “minimum
possible” confinement. Walls, supra at 570, 926 A.2d at 965.
Under 42 Pa.C.S.A. § 9721, the court has discretion to impose
sentences consecutively or concurrently and, ordinarily, a
challenge to this exercise of discretion does not raise a
substantial question. Commonwealth v. Pass, 914 A.2d 442,
446-47 (Pa. Super. 2006). The imposition of consecutive, rather
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than concurrent, sentences may raise a substantial question in
only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of
the crimes and the length of imprisonment. Id. (holding
challenge to court's imposition of sentence of six (6) to twenty-
three (23) months imprisonment and sentence of one (1) year
probation running consecutive, did not present substantial
question). Compare [Commonwealth v. Dodge, 957 A.2d
1198 (Pa. Super. 2008)] (holding imposition of consecutive
sentences totaling 58½ to 124 years[’] imprisonment for thirty-
seven (37) counts of theft-related offenses presented a
substantial question because total sentence was essentially life
sentence for forty-two year-old defendant who committed non-
violent offenses with limited financial impact).
Commonwealth v. Moury, 992 A.2d 162, 170-72 (Pa. Super. 2010).
Instantly, Appellant complains that his consecutive sentence was
imposed without consideration of certain factors which he believes should
have served to mitigate his sentence. This is, on its face, not a substantial
question for our review, McNabb, supra, particularly since Appellant has
failed to identify where his sentence falls within the guideline
recommendations. Compare Felmlee, supra.Moreover, Appellant does not identify which consecutive sentence he is
challenging. Appellant states that he is challenging a sentence of one year
imposed consecutively to his mandatory sentence for PWID; however, we
see no evidence of record that Appellant is serving such a sentence. Apart
from Appellant’s mandatory sentence, the certified record shows that
Appellant is serving a concurrent sentence of 1-12 months’ incarceration for
drug paraphernalia, a consecutive sentence of 6-24 months for REAP, and a
consecutive term of 5 years’ probation for PIC. Assuming that Appellant is
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challenging his consecutive sentence for REAP, we can emphatically state
that we do not view such a sentence as “unduly harsh,” nor does Appellant
present “extreme” circumstances for our consideration. Pass, supra.
Appellant was convicted for unjustly shooting the victim, which caused
substantial injuries that required hospitalization. A sentence of 6-24
months’ incarceration for such a crime is patently reasonable, especially
since Appellant was not separately sentenced for his convictions for simple
assault. Thus, the trial court did not abuse its discretion at sentencing with
respect to that offense. Accordingly, even if Appellant presented a
substantial question, his claim would be deemed meritless. As such, there is
no arguable merit to the claims that trial and/or direct appeal counsel were
ineffective for failing to challenge the discretionary aspects of Appellant’s
consecutive sentence.
Illegal Sentence
Finally, because of our disposition in this matter, we decline to address
Appellant’s legality of sentencing issue at this time, despite having certified
this case for en banc review on that basis. If Appellant is awarded a new
trial based on the claim compelling remand in this case, Appellant’s illegal
sentencing claim will be rendered moot. If Appellant is again denied relief
on that claim, however, Appellant is permitted, without prejudice, to re-raise
the illegal sentencing claim in a subsequent appeal.
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Order vacated. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2016
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