Com. v. Astillero, T.

J-S33038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD ASTILLERO :
:
Appellant : No. 1067 EDA 2021
Appeal from the Judgment of Sentence Entered October 12, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009058-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD ASTILLERO :
:
Appellant : No. 1068 EDA 2021
Appeal from the Judgment of Sentence Entered October 12, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009059-2016
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 19, 2023
Todd Astillero was found guilty of numerous offenses that occurred on
two dates approximately six months apart. The first incident, which gave rise
to charges at CP-51-CR-0009058-2016 (“First Case”), resulted in convictions
for robbery, possessing a firearm prohibited, criminal mischief, carrying a
firearm without a license, carrying a firearm on a public street in Philadelphia,
possessing instruments of crime, terroristic threats, simple assault, and
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recklessly endangering another person.1 The charges from the second incident
were docketed at CP-51-CR-009059-2016 (“Second Case”), and ended in
convictions for possession of a firearm by a prohibited person, carrying a
firearm without a license, and carrying a firearm on a public street in
Philadelphia.2 The two dockets were joined for trial.
During the pendency of this appeal, Astillero’s counsel passed away and
we remanded for appointment of counsel. The trial court appointed counsel,
who filed a supplemental Pa.R.A.P. 1925(b) statement and a supplemental
brief in this Court.
Astillero’s initial brief challenged the denial of his motion to sever the
cases, the failure to decide his pretrial motions before the start of trial, and
the sufficiency of the evidence to support a finding that he possessed the
firearm at issue in the Second Case. In his supplemental brief, Astillero claims
that his sentence was excessive and that the prosecutor in his case committed
misconduct. We conclude each of these issues lack merit.
The facts and procedural background of this case, as gleaned from the
trial court’s opinion and the certified record, are as follows. The incident giving
rise to the First Case occurred on January 30, 2016, when Astillero and a
second male were inside Celebrity Vape Lounge (“Celebrity Vape”), on Market
Street in West Philadelphia. Celebrity Vape is owned by Astillero’s cousin,
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118 Pa.C.S.A. §§ 3701(a)(1), 6105(a)(1), 3304(a)(2), 6106(a)(1), 6108,
907(a), 2706(a)(1), 2701(a), and 2705, respectively.
2 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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Kareem Astillero (“Kareem”). There, Astillero became agitated and brandished
a handgun that he waved in the direction of a Celebrity Vape employee, Dustin
Sullivan. Astillero shouted, “Fuck you, fuck this, fuck Kareem and fuck the
white boy,” referring to Sullivan. Astillero then went behind the counter, stole
an iPad, and attempted to take a stereo receiver.
Once Astillero and the other male left, Sullivan called not only the police
but also Kareem. Both arrived at Celebrity Vape shortly thereafter. Kareem
received a call from Astillero, whom he placed on speaker phone so
Philadelphia Police Officer Anthony Britton could hear. Astillero then said, “I
really wish you didn’t call the cops; I got to kill you and the white boy.” Kareem
showed police detectives a text exchange between himself and Astillero in
which Astillero accused him of being a “rat” and threatened repercussions.
Ultimately, Philadelphia police detectives obtained a warrant for Astillero’s
arrest.
The events leading to the Second Case occurred approximately six
months later, on June 17, 2016, when police executed the arrest warrant.
Philadelphia Housing Authority Police Officer Ralston Thomas and other law
enforcement personnel went to the home of Astillero’s girlfriend, Chrystal
Richmond, who let the officers into her apartment and advised that Astillero
was in a back bedroom. The officers knocked on the bedroom door, and
Astillero opened it voluntarily. Officers then took him into custody without
incident. Richmond consented to a search of the apartment, and in a closet in
the bedroom in which police had found Astillero – the closet had no doors –
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officers spotted a red bag on the top shelf. The bag contained a black firearm.
Astillero was charged in both cases.
After several delays, the parties appeared for trial on June 23, 2017.
Astillero’s counsel informed the court that there was an outstanding a motion
to suppress evidence of the gun found upon Astillero’s arrest. See N.T.,
6/23/17, at 12. The trial judge determined that another judge should hear the
motion in order to avoid prejudice. Id. at 34. The trial judge nevertheless also
determined that he would first hear the testimony of a Commonwealth
witness, Officer Britton, because the officer was in court that day, the cases
had been pending for some time, and the officer’s testimony did not involve
the firearm found at the time of Astillero’s arrest. Before Officer Britton could
begin his testimony, however, the defense stated that it also had an
outstanding motion to sever the two cases. After a conference in chambers,
the trial judge decided to allow the officer to testify because his testimony
would only concern the First Case. Thereafter, another judge would preside
over both the suppression motion and severance motion. Astillero noted his
objection for the record, without explanation, and Officer Britton testified.
The motions then went before another judge on June 27, 2017, who
denied severance because evidence of the circumstances surrounding the
execution of the arrest warrant was admissible in both cases. The judge also
noted that because Astillero had decided to proceed with a bench trial, if both
cases were tried together, the possibility of unfair prejudice was significantly
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reduced. Citing the interest in judicial economy, she then declined to entertain
the motion to suppress and returned it to the trial judge.
The trial judge held a hearing on the suppression motion on July 5,
2017, and denied it. The court then proceeded to a bench trial on both cases,
incorporating the testimony from the motion to suppress into the trial record.3
Relevant to this appeal, Celebrity Vape employee Dustin Sullivan
testified that during events leading to the First Case, he saw Astillero with
“either a .9 millimeter or .45 in his right hand.” N.T., 7/5/17, at 99. There was
no other testimony about the description of the gun involved in the First Case.
Regarding the Second Case, Officer Thomas testified about his discovery of
the firearm in the red bag. He described the gun as “a black firearm” and said
he “believe[d]” it was “a Glock 19, with an extended magazine.” Id. at 25,
28. Officer Thomas said he could not be sure if any men’s clothing was in the
bedroom closet.
In defense, Astillero presented the testimony of his girlfriend, Richmond.
Richmond testified that she had been in a relationship with Astillero for over
a year prior to his arrest. Id. at 56. Richmond explained that Astillero stayed
at her home “[a] few nights here and there throughout the year,” and that he
would stay between two and four nights at a time and sleep in her bedroom.
Id. at 49, 58, 77. She said that Astillero brought “food, stuff like that, DVDs,”
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3 See N.T., 7/5/17, at 150.
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when he came to visit, and that he kept a toothbrush at her apartment, but
no clothing. Id. at 75, 77.
When asked whether it was Astillero’s bag from in which the firearm was
found, Richmond responded, “I never seen [Astillero] with a bag.” Id. at 65.
However, Richmond denied that the bag containing the firearm was hers, that
she had ever seen the firearm before, or that she had known there was a
firearm in her home. Id. at 49, 64, 75. She stated she noticed the bag the
night before Astillero’s arrest. Id. at 65-66, 76-77. According to Richmond,
the only other occupants of the home are her three-year-old son and 16-year-
old daughter, and the bag does not belong to her daughter. Id. at 60, 65.
Richmond also testified that there was “a lot of traffic coming in and
out” of her apartment because she sold food. Id. at 75. However, Richmond
testified that Astillero did not have any visitors and that her daughter, who
has a key, does not allow anyone into the apartment. Id. at 49-50, 65.
The court found Astillero guilty of all charges, and sentenced him on
October 12, 2017. On the First Case, the court imposed an aggregate sentence
of 10 to 20 years’ incarceration to be followed by 10 years of probation.
Regarding the Second Case, it sentenced Astillero in total to five to 10 years’
incarceration with a concurrent period of seven years of probation, all to be
served concurrently with the sentence on the First Case. Astillero filed a
motion to reconsider his sentence, which the court denied.
In November 2017, Astillero filed a timely appeal to this Court, but this
Court ultimately dismissed it due to Astillero’s failure to ensure the inclusion
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of necessary transcripts in the certified record. See Commonwealth v.
Astillero, 1355 EDA 2018 (Pa.Super. filed February 23, 2021) (unpublished
memorandum). Astillero filed a timely Post Conviction Relief Act petition and
the trial court reinstated Astillero’s direct appeal rights on May 21, 2021. This
timely appeal followed. However, in March 2022, this Court was informed that
defense counsel could not continue and therefore we ordered new counsel to
be appointed. The trial court appointed present counsel on March 17, 2022.
Counsel filed a supplementary Rule 1925(b) statement which incorporated
previous counsel’s initial issues and added two additional issues.
Through his his initial counsel, Astillero raised the following issues:
A. Did the trial court commit an abuse of discretion by denying
[Astillero’s] motion to sever the two cases because the evidence
in one case was not admissible in the other case and vice versa
and because the evidence constituted propensity evidence?
B. Did the trial court commit reversible error by overruling trial
counsel’s objection to commencing the trial before ruling on
[Astillero’s] motion to sever and motion to suppress in violation of
Pa.R.Crim.P. 580?
C. Was the evidence [in the Second Case] insufficient to prove
[Astillero] committed the crimes possession of a firearm by a
prohibited person, carrying a firearm without a license, and
carrying a firearm on a public street as the required element of
possession was not established either in actuality or constructively
because the authorities found the gun not on [Astillero’s] person
but in a residence that was not [Astillero’s] where other persons
resided who had access to the gun and the power to exercise
dominion and control of the firearm and because evidence failed
to prove beyond a reasonable doubt that [Astillero] had the intent
to possess the gun?
D. Was the evidence [in the Second Case] insufficient to prove
[Astillero] committed the crime of carrying a firearm on a public
street because the Commonwealth failed to prove beyond a
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reasonable doubt that [Astillero] possessed the gun on a public
street?
E. Was the evidence on docket [in the Second Case] insufficient to
prove [Astillero] committed the crime of carrying a firearm
without a license because the Commonwealth failed to prove
beyond a reasonable doubt that [Astillero] carried a firearm
concealed on or about his person?
See Astillero’s initial Br. at 3-4 (reordered).
Current counsel also raises the following issues:
A. Did the [trial] court abuse its discretion by fashioning a sentence
that greatly exceeded that which is necessary to protect the
public, greater than that requested by the prosecutor and seems
not to have taken into consideration [Astillero’s] familial and
community support, remorse and where the sentencing court
incorrectly said that [Astillero] had no remorse?
B. Did the Commonwealth commit prosecutorial misconduct by
divulging to the waiver Judge prior to a waiver trial that [Astillero]
had a prior record score of “5” and that he had multiple criminal
“convictions,” and should such reckless prosecutorial misconduct
bar retrial pursuant to Article I, Section 10 of the Pennsylvania
Constitution, as [Astillero] was deprived of a fair trial?
See Astillero’s supplemental Br. at 5.
In his first issue, Astillero contends that the trial court erred by denying
his motion to sever. He argues that the only common element between the
two incidents was his alleged possession of a gun, and that there is no
evidence that the gun found in the Second Case was the same as the one
allegedly used in the First Case. Thus, according to Astillero, joinder did not
serve judicial economy and only resulted in unnecessary prejudice due to the
nature of the handgun evidence. He asserts that the trial judge erroneously
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considered his “propensity” to carry a gun when concluding he was guilty of
possessing a gun in both the First Case and the Second Case.
We review an order denying a motion for severance for a manifest abuse
of discretion. Commonwealth v. Renninger, 269 A.3d 548, 563 (Pa.Super.
2022) (en banc). Pennsylvania Rule of Criminal Procedure 582 governs the
joinder of separate informations for trial. It provides:
(1) Offenses charged in separate indictments or informations may
be tried together if:
(a) the evidence of each of the offenses would be admissible
in a separate trial for the other and is capable of separation
by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582(A)(1).
When charges are not based on the same act or transaction, courts
considering whether joinder is proper first ask if the evidence of each of the
offenses would be admissible in a separate trial for the other, and whether
such evidence is capable of separation by the jury so as to avoid danger of
confusion. If the answers to these questions are in the affirmative, the court
then must decide whether the defendant will be unduly prejudiced by the
joinder of charges for trial. Commonwealth v. Thomas, 879 A.2d 246, 260
(Pa.Super. 2005).
Thus, the court “must first determine if the evidence of each of the
offenses would be admissible in a separate trial for the other.”
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Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997). Evidence of other
crimes, wrongs, or acts is not admissible to prove that the defendant acted
“in conformity with those acts or to demonstrate a criminal propensity.”
Commonwealth v. Brown, 52 A.3d 320, 325 (Pa.Super. 2012); Pa.R.E.
404(b). However, evidence of “bad acts” is admissible for another, proper
purpose, such as “to prove motive, opportunity, intent, preparation, plan,
knowledge, identity, and absence of mistake or accident.” Brown, 52 A.3d at
325.
If criminal charges joined for trial are distinguishable in time, place, and
participants, a factfinder is considered to be capable of separating the
evidence. See Collins, 703 A.2d at 423. This is particularly so if the factfinder
is a judge. A judge is “presumed to disregard inadmissible evidence and
consider only competent evidence.” Commonwealth v. Kearney, 92 A.3d
51, 61 (Pa.Super. 2014) (citation omitted). See also Commonwealth v.
Gribble, 863 A.2d 455, 462 (Pa. 2004). The consolidation of charges is
encouraged, as a general policy, to promote judicial economy.
Commonwealth v. Patterson, 546 A.2d 596, 600 (Pa. 1988).
In the instant case, we find no abuse of discretion in the denial of
Astillero’s motion to sever. Evidence of Astillero’s possession of a gun in the
First Case was probative as to Astillero’s potential possession of a similar gun
during his resulting arrest in the Second Case, and vice-versa. The time
between the two incidents bears upon the weight of that evidence, not its
admissibility. Moreover, any claim of undue prejudice fails. The trial judge,
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sitting as factfinder, was well equipped to disregard any confusion or prejudice
that a jury might have experienced from the joinder of Astillero’s two cases.
See Kearney, 92 A.3d at 61; Gribble, 863 A.2d at 462. Astillero’s first issue
lacks merit.
Next, Astillero contends that the trial court erred when it failed to rule
on his motions to sever the cases and to suppress evidence before trial. He
points to Pennsylvania Rule of Criminal Procedure 580, which states, “Unless
otherwise provided in these rules, all pretrial motions shall be determined
before trial.”
The trial court concluded that Astillero had waived this claim and, in any
event, it at most constituted harmless error. We agree on both scores. When
the trial judge spoke with the parties about his hearing Officer Britton’s
testimony before the other judge would hear the pretrial motions, Astillero
lodged a general objection, stating, “Just note my objection for the record.”
See N.T., 6/23/17, at 35. He did not state a basis for the objection, and in
view of the judge’s statement shortly beforehand that he was referring the
pretrial motions to the other judge, it reasonably would have been understood
as an objection to his not hearing the motions there and then. Astillero failed
to give the trial judge a reasonable opportunity to correct any alleged error,
and in so doing, he failed to preserve a challenge to the timing of the pretrial
motions. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal”).
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Moreover, we perceive no prejudice, and Astillero has failed to explain
even on appeal how any error in the court’s hearing the testimony of Officer
Britton prior to the disposition of his pretrial motions harmed him. See
Commonwealth v. Hamlett, 234 A.3d 486, 492 (Pa. 2020) (holding
appellate courts may affirm on alternate basis that error was harmless beyond
a reasonable doubt). Accordingly, Astillero’s second issue also warrants no
relief.
Turning to Astillero’s third issue, he challenges the sufficiency of the
evidence supporting his convictions on the firearms charges in the Second
Case. He maintains that the Commonwealth failed to prove that he
constructively possessed the firearm found in his girlfriend’s closet. He
contends that the Commonwealth presented no evidence to connect him with
that particular gun, only showing his mere presence in the room in which it
was found. He asserts he “did not reside in the apartment and there is no
testimony that he did anything that he suggested that he was aware of the
presence of the gun.” Astillero’s initial Br. at 21.
When reviewing a challenge to the sufficiency of the evidence, we are
“required to view the evidence in the light most favorable to the verdict winner
giving the prosecution the benefit of all reasonable inferences to be drawn
from the evidence.” Commonwealth v. Neysmith, 192 A.3d 184, 189
(Pa.Super. 2018) (citation omitted). Our standard of review is de novo, and
our scope of review is plenary. Id. “Evidence will be deemed sufficient to
support the verdict when it establishes each material element of the crime
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charged and the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence. Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.Super. 2019). The
trier of fact is free to believe all, some, or none of the evidence.
Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 2016). When
performing sufficiency review, “this Court may not substitute its judgment for
that of the factfinder, and where the record contains support for the
convictions, they may not be disturbed.” Commonwealth v. Smith, 146 A.3d
257, 261 (Pa.Super. 2016).
Each of the firearms offenses for which Astillero was found guilty in the
Second Case has a possessory element. To sustain a conviction for Possession
of a Firearm by a Prohibited Person the Commonwealth must prove a person
possessed, used, controlled, sold, transferred, or manufactured a firearm and
had been adjudicated delinquent for a disabling offense. 18 Pa.C.S.A. §
6105(a)(1), (c)(7). The offense of Firearms Not to be Carried Without a
License makes it a crime for “any person” to carry “a firearm in any vehicle or
any person who carries a firearm concealed on or about his person, except in
his place of abode or fixed place of business, without a valid and lawfully
issued license . . . .” 18 Pa.C.S.A. § 6106(a)(1). Carrying a Firearm on a Public
Street prohibits any person from carrying a firearm, rifle or shotgun on the
public streets or any public property in a city of the first class unless: (1) such
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person is licensed to carry a firearm; or (2) such person is exempt from
licensing under 18 Pa.C.S.A. § 6106(b). See 18 Pa.C.S.A. § 6108.
Because Astillero was not found in physical possession of a firearm, the
Commonwealth had to establish constructive possession. Commonwealth v.
Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013). Constructive possession is a
conclusion from the totality of the evidence that the defendant had “conscious
dominion” over an object. “Conscious dominion” is “the power to control the
contraband and the intent to exercise that control.” Id. at 820. “Mere presence
or proximity to the contraband is not enough to prove constructive
possession.” Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019).
Rather, “[t]he evidence must show a nexus between the accused and the item
sufficient to infer that the accused had the power and intent to exercise
dominion and control over it.” Id. The intent to exercise dominion and control
over contraband in turn requires proof that the defendant had knowledge of
the existence and location of the contraband. Commonwealth v. Parrish,
191 A.3d 31, 37 (Pa.Super. 2018).
The evidence was sufficient to establish beyond a reasonable doubt that
Astillero constructively possessed the firearm. The police found Astillero in
Richmond’s bedroom, and Richmond testified that Astillero frequently stayed
there for days at a time, bringing and leaving some of his personal effects.
Richmond also testified that she first noticed the bag the previous night and
that it did not belong to her or the only other occupants of the apartment, her
children. Viewed in the light most favorable to the Commonwealth, this
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testimony would allow a factfinder to conclude that the firearm belonged to
Astillero. See Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa. 1986)
(concluding evidence sufficient to prove defendant constructively possessed
contraband where he and paramour shared bedroom where contraband was
found). The court, as fact-finder, was free to disbelieve any portion of
testimony to the contrary. Beasley, 138 A.3d at 45.
Astillero further argues the evidence was insufficient to convict him for
Carrying a Firearm on a Public Street because there was no evidence that he
had possessed the firearm while on a public street. Astillero’s initial Br. at 38
(citing 18 Pa.C.S.A. § 6108). He contends, “While someone had to have
carried the gun on a public street, there is no evidence that said person was
[Astillero]. . . . It is equally likely that someone other than [Astillero] carried
the gun into the apartment as it is that [Astillero] did so.” Id. at 38, 39.4
Richmond’s testimony was sufficient to establish that Astillero not only
possessed the firearm while it was in her apartment, but that he was the one
that brought it there. Richmond testified that she first noticed the bag in the
closet the night before Astillero’s arrest. She stated that the bag did not belong
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4 Astillero does not argue that the someone could have accessed Richmond’s
apartment without traversing either a public street or public property. See 18
Pa.C.S.A. § 6108 (prohibiting an unlicensed person from carrying a firearm
“upon the public streets or upon any public property in a city of the first
class”). Such an argument would not likely be successful in this case, as
Richmond’s apartment was in a building owned by the Philadelphia Housing
Authority (“PHA”). See N.T., 7/5/17, at 60, 74; Commonwealth v. Goosby,
380 A.2d 802, 806 (Pa.Super. 1977) (holding common areas surrounding PHA
apartments are “public property” for purposes of Section 6108).
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to her daughter, and, while her daughter has a key to the apartment, she does
not let other people inside. Richmond also testified that Astillero did not have
any visitors. Although Richmond also testified that people entered her home
to purchase food, this does not make it “equally likely” that someone other
than Astillero would have transported the firearm to the apartment.
The last of Astillero’s initial issues is also meritless. Astillero argues the
evidence was insufficient to support his conviction for Firearms Not to be
Carried Without a License (“Section 6106”) because there was no evidence
that he had concealed a firearm on or about his person. See Astillero’s initial
Br. at 40 (citing 18 Pa.C.S.A. § 6106(a)(1)).
The “concealed” element under Section 6106 is met when, “viewed in
the totality of the circumstances, [the defendant] carries the firearm in such
a manner as to hide the firearm from ordinary observation.” Commonwealth
v. Montgomery, 234 A.3d 523, 536 (Pa. 2020). Here, the evidence was
sufficient to allow the factfinder to conclude that Astillero brought the firearm
to Richmond’s apartment without her seeing it and secreted it in a bag in the
bedroom closet. The totality of the circumstances indicates that Astillero hid
the firearm from ordinary observation, thus violating Section 6106.
In his first supplemental issue, Astillero argues that the trial court
abused its discretion by sentencing him above the recommended sentencing
guidelines. He points out that that his aggregate sentence of 10 to 20 years’
incarceration was an upward departure even from the aggravated range
sentence requested by the Commonwealth of 8 ½ to 20 years’ incarceration.
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Further, Astillero claims that the court erred by failing to consider mitigating
factors such as his need for rehabilitation due to marijuana use and his alleged
expressions of remorse.
Astillero challenges the discretionary aspects of his sentence. The right
to appellate review of the discretionary aspects of a sentence is not absolute,
and a criminal defendant’s assertion of such an issue on appeal “must be
considered a petition for permission to appeal.” Commonwealth v. Conte,
198 A.3d 1169, 1173 (Pa.Super. 2018).
Before reviewing the merits of Astillero’s claim, we must determine
whether: “(1) the appeal is timely; (2) the appellant has preserved his issue;
(3) his brief includes a concise statement of the reasons relied upon for
allowance of an appeal with respect to the discretionary aspects of his
sentence; and (4) the concise statement raises a substantial question whether
the sentence is inappropriate under the Sentencing Code.” Commonwealth
v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); see also Pa.R.A.P. 2119(f)
(stating that an appellant who challenges the discretionary aspects of a
sentence “shall set forth in a separate section of the brief a concise statement
of the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence”).
Instantly, Astillero has complied with the first three requirements: his
appeal is timely, he preserved the issue in a post-sentence motion, and his
brief includes a statement of the reasons for allowance of appeal. We now turn
to whether Astillero has raised a substantial question.
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A substantial question exists when the appellant makes a colorable
argument that the sentencing judge’s actions were either inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Moury, 999
A.2d 162, 170 (Pa.Super. 2010). Astillero’s Pa.R.A.P. 2119(f) statement
asserts that the sentencing court imposed an excessive sentence by
sentencing him outside of the sentencing guidelines and by failing to consider
mitigating factors. Astillero’s Br. at 14-17. Such a claim raises a substantial
question. See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.
2003) (en banc) (stating that a substantial question is raised where appellant
claims the sentencing court imposed an aggravated range sentence without
considering mitigating circumstances); Commonwealth v. Riggs, 63 A.3d
780, 786 (Pa.Super. 2012) (finding that appellant raised a substantial
question when he argued that “the trial court failed to consider relevant
sentencing criteria, including . . . the rehabilitative needs of [a]ppellant, as 42
Pa.C.S.A. § 9721(b) requires”). Thus, we proceed to the merits of Astillero’s
claim.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super.
2018), appeal denied, 202 A.3d 41 (Pa. 2019) (citation omitted). An abuse of
discretion occurs where “the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
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arrived at a manifestly unreasonable decision.” Id. (citation omitted). In
imposing a sentence, the sentencing court must consider “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).
The sentencing court must state its reasons for the sentence on the
record. Id. “A sentencing court’s indication that it has reviewed a presentence
report can satisfy the requirement of placing reasons for imposing the
sentence on the record.” Commonwealth v. Bullock, 170 A.3d 1109, 1126
(Pa.Super. 2017) (citation omitted). Indeed, “where the trial court is informed
by a [presentence] report, 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.” Id. (quoting
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009)); see
also Moury, 992 A.2d at 171. Additionally, this Court should not reweigh the
sentencing factors considered by the trial court and impose our own judgment
in the place of the trial court. Commonwealth v. Macias, 968 A.2d 773, 778
(Pa.Super. 2009).
In the instant case, the trial court reviewed a presentence report (“PSI”)
and provided legally sufficient reasons for sentencing Astillero. See N.T.,
10/12/17. Therefore, we presume that the trial court was aware of all
appropriate sentencing factors and considerations, including Astillero’s
character, rehabilitative needs, and mitigating factors or lack thereof. See
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Bullock, 170 A.3d at 1126- 1127. As the court emphasized in its
supplementary opinion, it considered the need to protect the public from
Astillero’s “bad character” and “dangerous propensities.” Trrial Ct. Sup. Op.,
5/19/22, at 26. The court noted “the severity of the crime, the fact that
[Astillero] threatened his own wheelchair bound cousin to the point that he
was terrified to come to court, and that he has prior crimes involving firearms.”
Id. The court furthermore found that Astillero expressed no credible remorse,
and it found no mitigating factors. See id.Based on the foregoing, we conclude that the trial court properly
considered all of the relevant sentencing factors, including the information
contained within the presentence report, the seriousness of the crime, the
need to protect the public, and Astillero’s need for rehabilitation, and did not
commit an abuse of discretion by imposing a sentence above the aggravated
range. Astillero’s first supplemental issue lacks merit.
Turning to Astillero's second supplementary issue, he avers that the trial
court erred by failing to find that the Commonwealth committed prosecutorial
misconduct. He claims that the prosecutor committed misconduct by
mentioning Astillero’s prior record score to the court, prior to trial, in the
context of discussing a plea offer the Commonwealth had made to Astillero.
Astillero takes issue with the following exchange:
[Prosecutor]: Based upon those charges, the offense gravity score
in this case is a ten and prior record score, based upon your prior
convictions, is a five, which means the guidelines in this case—
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[Defense counsel]: Objection as to reference to his prior record
score. It is my understanding that Your Honor is going to hear this
case. He has a right basically to Your Honor not having any
information as to his prior criminal record and you were just
informed that he has a prior record score of a five.
The Court: I think what she is attempting to do is let him know
the gravity of the situation. Of course, I have not heard any facts,
so that is not going to impinge upon me one way or the other. I
think that is all she is attempting to do, colloquy him with regard
to the offer. I have heard what you said. It has no impact upon
my decision whatsoever, since I did not hear the facts.
(N.T., 6/23/17 at p. 24).
Astillero maintains that the above exchange constituted prosecutorial
misconduct because, whether intentionally or merely recklessly, the
Commonwealth prejudiced him by essentially informing the court that he was
a repeat criminal offender. To this end, Astillero cites Commonwealth v.
Johnson, 231 A.3d 807, 826-27 (Pa. 2020) (concluding prosecutor
committed misconduct by making misleading statements regarding evidence).
A prosecutor’s remarks do not rise to the level of prosecutorial
misconduct unless their unavoidable effect would be to prejudice the
factfinder, “forming in [his] mind a fixed bias and hostility toward the
defendant such that they could not weigh the evidence objectively and render
a true verdict.” Commonwealth v. Bronshtein, 691 A.2d 907, 917 (Pa.
1997). We review a ruling on a claim of prosecutorial misconduct for abuse of
discretion. Commonwealth v. Rivera, 939 A.2d 355, 357 (Pa.Super. 2007).
Claims of prosecutorial misconduct are “evaluated under the harmless error
standard.” Commonwealth v. Cousar, 928 A.2d 1025, 1042 (Pa. 2007).
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Here, Astillero’s contemporaneous objection to the prosecutor’s
statements was not sufficient to preserve his claim. Astillero’s objection had
to request specific relief, on pain of waiver. See Commonwealth v. Brown,
134 A.3d 1097, 1107, (Pa.Super. 2016) (finding defendant’s prosecutorial
misconduct claim waived when counsel made a contemporaneous objection
but failed to request any further action); Commonwealth v. Sandusky, 77
A.3d 663, 670 (Pa.Super. 2013). As Astillero failed to request the required
relief, his issue is waived.
In any event, to the extent that the prosecutor’s reference to Astillero’s
offense gravity score and prior record score was inappropriate, we must
presume that the trial court, sitting as factfinder, was capable of disregarding
any prejudicial remarks in reaching its verdict. See Commonwealth v.
Thomas, 783 A.2d 328, 335 (Pa. Super. 2001). As noted, the prosecutor’s
reference was in the context of discussions regarding a plea offer and the
court specifically emphasized that the remark would not “impinge” upon his
ability to hear the case. Thus, Astillero failed to establish sufficient prejudice
to require reversal. See id. Accordingly, Astillero’s last supplemental issue
also warrants no relief.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2023
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