Com. v. Brock, J.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
JOHN BROCK, :
:
Appellant : No. 1111 EDA 2017
Appeal from the Judgment of Sentence March 3, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0708871-2003
BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 21, 2019
John Brock (Appellant) appeals from the judgment of sentence of 15½
to 31 years of incarceration plus 5 years of probation following his jury
conviction of aggravated assault, carrying a firearm without a license,
carrying a firearm on public streets in Philadelphia, possession of an
instrument of crime, and person not to possess a firearm, and his guilty plea
to possession with intent to deliver (PWID). We affirm.
We glean the following factual and procedural history from the record.
At approximately 5:45 a.m. on June 2, 2003, police responded to a call for a
shooting at the home of Valerie Copper, in Philadelphia. Upon arrival,
officers encountered Etienne Johnson, who had been shot in the chest.
Witnesses at the house described the shooter as a black male, 5’9”, and
*Retired Senior Judge assigned to the Superior Court.
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wearing a black and orange jacket. This description was broadcast over the
police radio.
While driving towards the scene within minutes of the initial call,
Officer Timothy Hart observed Appellant a few blocks from the shooting,
walking in the opposite direction. Appellant, a black male, was wearing an
orange and black hooded sweatshirt underneath a black jacket. Officer Hart
made a U-turn and exited his vehicle to approach Appellant. As he did so,
Appellant immediately fled on foot. Officers Hart and Michael Shankin
pursued Appellant. Officer Shankin ultimately apprehended Appellant and
brought him back to his police vehicle to be transported to the hospital for
injuries sustained during his flight. Prior to Appellant’s being transported,
Copper was brought to the area and she identified Appellant as the shooter.
A search at the hospital revealed crack cocaine within Appellant’s clothing.
Based on the foregoing, Appellant was charged on June 3, 2003, with
the shooting and PWID, and was arrested on June 16, 2003. Later ballistics
testing matched a recovered projectile from Copper’s home to the revolver
that Appellant dropped as he ran from police.
The case was first listed for trial on December 15, 2003, but was
continued numerous times until March 8, 2005. On that date,
[Appellant], who was on house arrest pursuant to Pa.R.Crim.P.
600(E), failed to appear for court. A bench warrant for his arrest
was issued on March 18, 2005[.]
… [Eventually in 2006, after Appellant was incarcerated
elsewhere on unrelated charges], the Commonwealth arranged
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for [Appellant’s] return to Philadelphia to stand trial on the June
3, 2003 charges.
On May 24, 2007, [Appellant’s] attorney orally argued that he
was entitled to the dismissal of all charges, with prejudice,
pursuant to Pa.R.Crim.P. 600[.] … [Following hearings on May
24, 2007, and January 18, 2008,] the trial court granted
[Appellant’s] motion and dismissed the charges against him.
Commonwealth v. Brock, 61 A.3d 1015, 1016 (Pa. 2013) (footnotes
omitted).
The Commonwealth appealed, and this Court affirmed the order
dismissing Appellant’s case. Commonwealth v. Brock, 4 A.3d 678 (Pa.
Super. 2010) (unpublished memorandum). However, after granting the
Commonwealth’s petition for allowance of appeal, our Supreme Court
reversed the trial court’s order and remanded. Brock, 61 A.3d at 1019-20.
The Court concluded that Rule 600 requires a defendant to file a written
motion to dismiss, which Appellant had failed to do, and therefore he was
not entitled to relief. The Court also determined Appellant had waived his
Rule 600 issue because he failed to appear in court on the day listed for
trial.1 Id. at 1022.
1
Subsequently, our Supreme Court clarified that this waiver rule “applies
only where a defendant fails to appear for a trial that complied with the
requirements of Rule 600.” Commonwealth v. Barbour, 189 A.3d 944,
960-61 (Pa. 2018). In concluding that its earlier decision in Brock complied
with this narrowed construction, the Court noted that
[a] review of the Superior Court’s memorandum in Brock, []
reveals that [Appellant’s] original trial date was indeed timely
(Footnote Continued Next Page)
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Following remand, on May 19, 2014, Appellant filed a motion to
suppress the revolver and other physical evidence, and on October 30,
2014, he filed a motion to suppress Copper’s identification. Following
several continuances, a hearing was held on November 22, 2016. At the
hearing, the Commonwealth presented the testimony of Officer Hart and
Sergeant Daniel Gorman. Appellant did not call any witnesses, but
introduced into evidence the weather report for the morning of June 2,
2003. At the conclusion of the hearing, the trial court denied Appellant’s
motions. N.T., 11/22/2016, at 50-52.
Meanwhile, on January 26, 2015, Appellant filed a motion to bar
ballistics evidence because the revolver and ballistics evidence had been
destroyed by the Commonwealth prior to trial. In its response, the
Commonwealth asserted that the evidence was destroyed in error, but that
it was done in compliance with department policy. Commonwealth’s
Opposition to Defendant’s Motion to Bar Ballistics Evidence, 1/29/2015, at 3.
Following a hearing, the trial court denied Appellant’s motion because it
found that the police did not act in bad faith. N.T., 5/2/2015, at 59.
(Footnote Continued) _______________________
under Rule 600—a conclusion with which th[e Supreme] Court
took no issue. See [Brock, 4 A.3d 678 (unpublished
memorandum at 10)] (noting that, by the date of Brock’s
original trial, “252 days chargeable to the Commonwealth had
elapsed”).
Barbour, 189 A.3d at 958.
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A jury trial occurred from November 29, 2016 to December 2, 2016,
wherein the aforementioned facts were developed. Additionally, because
Copper died prior to Appellant’s trial, the trial court permitted the
introduction of Copper’s preliminary hearing testimony, which detailed the
events surrounding the shooting, as substantive evidence. See N.T.,
11/28/2016, at 41-42 (ruling on the Commonwealth’s unavailability motion);
N.T., 11/29/2016, at 61-72 (reading Copper’s redacted preliminary hearing
testimony into the record).
At the conclusion of the trial, the jury found Appellant guilty as
indicated above. Separately, Appellant pleaded guilty to PWID.2 On March
3, 2017, the trial court sentenced Appellant to an aggregate term of 15½ to
31 years of incarceration followed by 5 years of probation.
Appellant filed a post-sentence motion, which the trial court denied.
This timely-filed appeal followed.3 Appellant raises 11 issues for this Court’s
review, which we have rephrased and reordered for clarity and ease of
disposition. See Appellant’s Brief at 14, 32-33, 64-65, 70.
2 During Appellant’s trial, he indicated his desire to plead guilty to PWID.
See N.T., 11/29/2016, at 7. The record does not reflect any guilty plea
colloquies or the acceptance by the trial court of Appellant’s guilty plea. The
voluntariness of Appellant’s guilty plea to PWID is not before this Court.
Therefore, this deficiency in the record does not hinder our review of
Appellant’s claims.
3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Waived Claims
We dispose of Appellant’s first eight claims together, as they are
waived for various reasons. Appellant’s first claim is that the trial court
erred in forcing Appellant to state before the jury that he was pleading guilty
to PWID. Appellant’s Brief at 14, 28. Specifically, it concerns the beginning
of his trial when the court crier asked, in front of the jury, how Appellant
wished to plead to each charge. Appellant responded “not guilty” to every
charge except PWID, to which he responded, “guilty.” N.T., 11/29/2016, at
7. Appellant argues on appeal that the trial court forced him to enter that
response in front of the jury. See Appellant’s Brief at 28. However, no
contemporaneous objection was made to the question. It is well-settled that
“failure to raise a contemporaneous objection to the evidence at
trial waives that claim on appeal.” Commonwealth v. Thoeun Tha, 64
A.3d 704, 713 (Pa. Super. 2013) (citations omitted). Moreover, Appellant
never moved to have the PWID charge severed for purposes of his jury trial.
Therefore, this issue is waived.
Appellant’s second claim is that the trial court erred in overruling
Appellant’s objection to the ballistics expert’s stated degree of scientific
certainty regarding the conclusions he drew in this case. Appellant’s Brief at
14. It is waived because he raises new theories on appeal unrelated to his
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cited objection at trial. See id. at 31-33;4 N.T., 11/30/2016, at 82. See
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (citation
omitted) (“Also, an appellant may not raise a new theory for
an objection made at trial on his appeal.”).
Appellant’s third claim is that the trial court erred in allowing the
Commonwealth to read into the record the dates of Appellant’s trial listings.
Appellant’s Brief at 14. This claim similarly is waived because at trial
Appellant only objected to one of the dates being read into the record,
whereas on appeal Appellant alleges that the trial court erred in admitting
the complete list of trial dates into the record. Compare N.T., 12/1/2016,
at 79 (objecting to “only one” of the offered dates) with Appellant’s Brief at
54 (claiming that “[t]he trial court erred in allowing the prosecution to read
the dates of Appellant’s trial listings into the record.”). Because Appellant
did not object to the admission of the list of trial dates, he has failed to
preserve his claim for our review.
Appellant’s fourth and fifth claims are that the trial court erred in
denying Appellant’s motion to suppress Copper’s identification as unduly
4 Appellant also argues on appeal that Commonwealth v. Whitacre, 878
A.2d 96 (Pa. Super. 2005), which held that the exact methodology used
herein was generally accepted in the scientific community, should be
overruled based on two articles critiquing forensic science. Appellant’s Brief
at 33-34. This new argument is also waived for failing to raise it at trial, and
insofar as Appellant asks us to overrule a prior panel of this Court, we
cannot do that under the circumstances presented here. See
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).
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suggestive and that the trial court erred in granting the Commonwealth’s
motion in limine to limit cross-examination of the ballistics expert.
Appellant’s Brief at 14, 64-65. His fourth claim is waived for failing to
develop it in any meaningful way in his brief, and his fifth claim is waived
because he completely abandons it within his argument, instead focusing on
his sixth claim. Appellant’s Brief at 64-65, 71. See Commonwealth v.
Delvalle, 74 A.3d 1081, 1086–87 (Pa. Super. 2013) (some citations
omitted) (“Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure
provides that ‘[t]he argument shall ... have ... the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.’ Pa.R.A.P. 2119(a). Failure by the appellant to discuss
pertinent facts or cite legal authority will result in waiver.”).
Appellant’s sixth claim, that the trial court erred in not excluding the
ballistics expert’s report, is waived because Appellant failed to raise it in his
Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b)(2)(iv) (“[A]ny issue
not properly included in the [s]tatement timely filed and served pursuant to
subdivision (b) shall be deemed waived.”).
Appellant’s seventh claim, that the trial court erred in denying
Appellant’s motion to suppress the crack cocaine as fruit of the poisonous
tree, is waived by virtue of his guilty plea to PWID. See Commonwealth v.
Heaster, 171 A.3d 268, 271 (Pa. Super. 2017) (citation omitted) (“[U]pon
the entry of a guilty plea, a defendant waives all claims and defenses other
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than those sounding in the jurisdiction of the court, the validity of the plea,
and what has been termed the ‘legality’ of the sentence imposed.”).
Finally, Appellant’s eighth claim, that his constitutional right to a
speedy trial was violated, is waived because he failed to raise it before the
trial court. “In evaluating speedy trial issues, our standard of review is
whether the trial court abused its discretion, and our scope of review is
limited to the trial court’s findings and the evidence on the record, viewed in
the light most favorable to the prevailing party.” Commonwealth v.
Miskovitch, 64 A.3d 672, 677 (Pa. Super. 2013) (citation and quotation
marks omitted). Speedy trial analysis requires a two-step inquiry: “we first
consider whether the delay violated Pa.R.Crim.P. 600, and if not, we may
proceed to the four-part constitutional analysis set forth in Barker[ v.
Wingo, 407 U.S. 514 (1972)].” Commonwealth v. Colon, 87 A.3d 352,
357 (Pa. Super. 2014). However, “[w]here the appellant does not raise the
separate constitutional issue apart from the Rule 600 issue as a basis for the
motion to dismiss, there is no need for the Barker balancing test to be
examined.” Id. at 357 n.2 (citation omitted).
Appellant did not raise a constitutional claim as part of his oral Rule
600 motion. See Brock, 61 A.3d at 1022 n.7 (noting that Appellant had not
raised a claim regarding his constitutional right to a speedy trial). Following
remand, Appellant still did not move for the court to dismiss the charges
against him based on his constitutional right to a speedy trial. Instead,
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Appellant waited until he filed this appeal to assert such a claim. See
Pa.R.A.P. 1925(b) Statement, 7/15/2017, at ¶ 8 (“Appellant now challenges
the issue under his constitutional right to a speedy trial.”). Because
Appellant failed to raise this claim before the trial court, there is no trial
court discretion for us to review, and Appellant’s claim fails. See Colon, 87
A.3d at 357 n.2. Moreover, we note that the trial court had in fact granted
Appellant’s oral rule-based speedy trial motion. It was our Supreme Court
that reversed that decision. Insofar as Appellant’s claim is really asking this
Court to overrule our Supreme Court’s holding, that we cannot do.
We now turn to Appellant’s claims that were preserved properly.
Motion to Suppress Revolver
Appellant’s ninth claim alleges that the trial court erred in denying his
motion to suppress. Appellant’s Brief at 64. We review this claim mindful of
the following.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, “whose duty it is to determine if the suppression
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court properly applied the law to the facts.” Thus, the
conclusions of law of the courts below are subject to our plenary
review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations
omitted).
On appeal, Appellant argues that, pursuant to Commonwealth v.
Matos, 672 A.2d 769 (Pa. 1996), the trial court erred by failing to suppress
the revolver because Appellant was subjected to a seizure when the police
chased him without probable cause to arrest him or reasonable suspicion to
conduct a stop and frisk. Appellant’s Brief at 69-70.
In Matos, our Supreme Court concluded “that the pursuit of an
appellant by police officers amount[s] to a seizure.” In re D.M., 781 A.2d
1161, 1164 (Pa. 2001) (footnote and citation omitted). “Thus, pursuant
to Matos, any contraband discarded during the pursuit was abandoned by
coercion and the officer must demonstrate either probable cause to make
the seizure or reasonable suspicion to stop and frisk.” Commonwealth v.
Cook, 735 A.2d 673, 675 (Pa. 1999) (citation and quotation marks omitted).
An investigatory stop, which subjects a suspect to a stop
and a period of detention but does not involve such coercive
conditions as to constitute an arrest, requires a reasonable
suspicion that criminal activity is afoot. Reasonable suspicion
depends upon both the content of the information possessed by
the police and its degree of reliability. Thus, quantity and quality
of information are considered when assessing the totality of the
circumstances. If information has a low degree of reliability,
then more information is required to establish reasonable
suspicion.
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Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000) (citations
omitted).
At the hearing, the Commonwealth called Officer Hart and Sergeant
Gorman to testify regarding their interactions with Appellant. While driving
to the scene of the shooting mere minutes after the call for help, Officer Hart
looked for an individual matching the description of the shooter broadcast by
responding officers. When he was approximately three blocks from Copper’s
home, Officer Hart observed Appellant walking in the opposite direction.
N.T., 11/22/2016, at 7, 9-10, 15-16. Appellant matched the description of
the shooter: black male, 5’9”, and wearing a black and orange jacket.
Specifically, Appellant was wearing a black and orange hooded sweatshirt
underneath a black jacket. Id. at 10, 21, 23. Officer Hart did not see
anyone else in the immediate area as he approached the scene, much less
anyone else matching the description of the shooter. Id. at 22. Because
Appellant matched the description of the shooter and was in close
geographic and temporal proximity to, and walking away from, the scene,
Officer Hart decided to stop and talk to Appellant. Id. at 21.
Officer Hart made a U-turn, exited his vehicle, and asked Appellant to
stop, at which point Appellant immediately fled on foot. Id. at 11. Officer
Hart pursued Appellant in his vehicle and on foot. During the chase, Officer
Hart observed Appellant climb a fence, and as he jumped down on the other
side a revolver fell off Appellant’s person and landed on the ground. Id. at
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13, 15. Appellant continued to climb over a second fence, which contained
barbed wire and razor ribbons, to get to nearby train tracks. In climbing
that second fence, Appellant suffered a severe laceration to his face. Id. at
12-13, 17, 27, 32. Appellant was ultimately apprehended by another officer
and transported to the hospital, where Sergeant Gorman recovered three
large chunks of crack cocaine from Appellant’s clothing. Id. at 27-28.
In denying Appellant’s motion to suppress, the trial court concluded
that Officer Hart had reasonable suspicion to stop and investigate Appellant
based on the totality of the circumstances. Trial Court Opinion, 4/13/2018,
at 12; see also N.T., 11/22/2016, at 50-52. The totality of the
circumstances includes the following. While responding to a shooting within
minutes of the initial call, Officer Hart observed an individual who matched
the detailed description of the shooter three blocks from the scene and
walking in the opposite direction. Additionally, Officer Hart did not observe
anyone else in the area at that time. Based upon our review of the record,
we agree with the trial court that Officer Hart had reasonable suspicion to
stop Appellant and pursue him when he fled. Accordingly, the trial court did
not err in denying Appellant’s suppression motion.
Preliminary Hearing Testimony of Valerie Copper
Appellant next claims that the trial court erred in granting the
Commonwealth’s unavailability motion and permitting the Commonwealth to
introduce the preliminary hearing testimony of Copper because Appellant did
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not have a full and fair opportunity to cross-examine her at the preliminary
hearing.5 Appellant’s Brief at 19-21.
Insofar as Appellant’s constitutional challenge raises a question
of law, our standard of review over the trial court’s admission of
the contested testimony is de novo and our scope of review is
plenary.
Our Supreme Court has made clear that the admission at trial of
previously [recorded] testimony depends upon conformity with
applicable evidentiary rules and the defendant’s constitutional
right to confront witnesses against him.
Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.
“Whether prior testimony was given at trial or at any other
proceeding, where, as here, admission of that prior testimony is
being sought as substantive evidence against the accused, we
conclude that the standard to be applied is that of full and fair
opportunity to cross-examine.” Commonwealth v. Bazemore,
[] 614 A.2d 684, 687 ([Pa.] 1992) (emphasis in original).
5 Specifically, Copper testified at the preliminary hearing that during the
early morning hours of June 2, 2003, she had several friends at her house to
play cards. She heard a knock at the door, and when she went outside to
the front porch she observed her friend, Dorothy, with Appellant. Appellant
demanded a $5 refund because Dorothy, whom Appellant had hired as a
prostitute to perform oral sex, failed to make him ejaculate. Copper re-
entered her home to look for $5, and Appellant and Dorothy followed her
inside. Copper gave Appellant $5 and told him to leave. As Appellant left he
said, “Oh, I’ll be back.”
Shortly thereafter, at approximately 5:45 a.m., Appellant returned to
Copper’s residence, this time brandishing a revolver in his hand. Appellant
began asking the occupants of Copper’s residence about Dorothy, yelling
repeatedly, “Where the bitch at?” Copper listened from the kitchen as the
other occupants insisted that Dorothy was no longer there. Appellant
responded, “Well I want my money,” and shot at Etienne Johnson twice.
Copper saw Appellant run out the front door and she called 911. N.T.,
7/24/2003, at 6-18.
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The Commonwealth may not be deprived of its ability to present
inculpatory evidence at trial merely because the defendant,
despite having the opportunity to do so, did not cross-examine
the witness at the preliminary hearing stage as extensively as he
might have done at trial.
Commonwealth v. Mitchell, 152 A.3d 355, 358–59 (Pa. Super. 2016)
(some citations and quotation marks omitted).
There is no question that Copper was deceased and unavailable at the
time of Appellant’s trial. Thus, the only inquiry before us is whether
Appellant had a full and fair opportunity to cross-examine her at the
preliminary hearing. Appellant “does not allege that the Commonwealth
withheld any statements, criminal record history, or any other concerning
factors relevant under the case law.” Id. at 359. Rather, Appellant presents
two arguments to support his contention that he was deprived a full and fair
opportunity to cross-examine Copper.
A.
First, Appellant argues that every defendant’s ability to cross-examine
a witness at a preliminary hearing “is per se impeded by this Court’s holding
in Commonwealth v. Ricker, 120 A.3d 349, 357 (Pa. Super. 2015)[,] in
which this Court held that credibility is not an issue at the preliminary
hearing[,]” and Pa.R.Crim.P. 542(E), which states that hearsay “‘shall be
sufficient to establish any element of an offense.’” Appellant’s Brief at 24
(quoting Pa.R.Crim.P. 542(E)). Because credibility is an issue at trial but not
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at a preliminary hearing, Appellant posits “to allow such preliminary hearing
testimony in at trial violates the Confrontation Clause.” Id. at 25. However,
notwithstanding Appellant’s displeasure with the Ricker decision, under the
circumstances here we cannot overrule a prior panel of this Court. See
Pepe, 897 A.2d at 465. Thus, Appellant’s first argument fails.
B.
Second, Appellant argues that the preliminary hearing judge sustained
Commonwealth objections during cross examination and overruled
Appellant’s objection to a question asked by the judge, hindering his ability
to fully and fairly cross-examine Copper. Appellant’s Brief at 20-21. Our
review of the record indicates that there was one instance where Appellant
objected to an answer given to the judge’s question, and three instances
where the judge sustained the Commonwealth’s objections on cross
examination.
In the first instance, the judge asked Copper during her direct
examination how she knew that Appellant had fired the weapon, and she
responded that he was “the only who asked for the gun.” Appellant
objected, and the judge did not rule on the objection, but the
Commonwealth concluded its direct examination at that time. N.T.,
7/24/2003, at 13. The judge’s failure to rule on Appellant’s objection did not
prevent Appellant from attempting to clarify or discredit Copper’s statement
on cross examination. That Appellant chose not to pursue this line of
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questioning at all on cross examination does not translate to a deprivation of
Appellant’s right to a full and fair opportunity to cross-examine.
Second, after asking Copper whether she ran a speakeasy, drank that
night, really did “not [have] one sip of alcohol” that night, and whether
Johnson had been drinking that night, all of which were answered in the
negative, the Commonwealth objected to Appellant asking Copper whether
one of the other occupants had been drinking. Id. at 14. That objection
was sustained. Whether a non-testifying witness had been drinking was
irrelevant to Copper’s testimony, and the judge did not err in sustaining the
objection. Appellant was given a full and fair opportunity to develop whether
Copper or Johnson had been drinking that evening/early morning.
Third, after stating that she was familiar with firearms, the
Commonwealth objected to Appellant’s question regarding how Copper was
familiar with firearms. Id. at 15. Appellant does not argue on appeal why
this testimony should have been admitted, except to state baldly that
Appellant was prejudiced by being unable to test her credibility as to how
she was familiar with firearms. Appellant’s Brief at 25.
Fourth, in asking why Copper did not call the police after the first
gunshot, Appellant asked twice whether she called the police and also
whether she had a house phone to call the police. Answering in the
negative, Appellant then asked if she had a back door that she could walk
out, to which the judge sustained an objection because “[s]he said she was
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hiding in the kitchen” and therefore was not going to go out any back door if
she could. N.T., 7/24/2003, at 16-17. Appellant had exhaustively
established that Copper chose to do nothing in response to the first gunshot,
whether or not she had the capability to do anything.
None of these sustained objections, nor the single failure to rule on an
objection, deprived Appellant of a full and fair opportunity to cross-examine
Copper at the preliminary hearing. Accordingly, we conclude that the trial
court did not err in admitting her preliminary hearing testimony as
substantive evidence at Appellant’s trial.
Discretionary Aspects of Sentence
Finally, Appellant challenges the discretionary aspects of his sentence.
Appellant’s Brief at 37. Thus, we must first determine whether Appellant
has invoked this Court’s jurisdiction to review the merits of this claim.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Appellant timely filed a notice of appeal, preserved the claim in a post-
sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
Thus, he has satisfied the first three requirements. We now turn to consider
whether Appellant has presented a substantial question for our review.
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.” Griffin, 65 A.3d at 935 (citation and quotation marks
omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant presents several
arguments.
[T]he [c]ourt “double-counted” [Appellant’s] prior criminal
history, failed to adequately state reasons for departing from the
guidelines on the record, and more generally, failed to place
[Appellant’s] conviction into its appropriate context in terms of
the seriousness of the offense, need for rehabilitation, and need
for protection of the community. The court also heard evidence
of [Appellant’s] open case which served to inflame the passions
of the court.
Ultimately, the sentences on this single [case] were
imposed consecutively and the sentence for aggravated assault
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exceeded the guideline range by double. These two factors
raised the aggregate sentence to an excessive level in light of
the criminal conduct at issue.
Id. at 38-39.
With regard to Appellant’s purported substantial question based on his
consecutive sentences, we keep the following in mind.
Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively
to other sentences being imposed at the same time or to
sentences already imposed. Any challenge to the exercise of this
discretion ordinarily does not raise a substantial question. Thus,
in our view, the key to resolving the preliminary substantial
question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal
conduct at issue in the case.
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citations
and quotation marks omitted).
Here, Appellant entered someone’s home, shot an individual point-
blank in the chest, and was subsequently apprehended in possession of a
large amount of crack cocaine. The trial court sentenced Appellant as
follows: aggravated assault, 10 to 20 years of incarceration; carrying a
firearm without a license, 3 to 6 years of incarceration; PWID, 2½ to 5 years
of incarceration; and possession of firearms prohibited, 5 years of probation.
All sentences were set to run consecutively. Appellant’s aggregate sentence
of 15½ to 31 years of incarceration followed by five years of probation did
not raise Appellant’s sentence on its face to an excessive level in light of the
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criminal conduct at issue here. Thus, we find that Appellant has not raised a
substantial question in that regard.
However, Appellant does raise substantial questions by alleging that
the trial court did not state its reasons for his aggravated range sentence on
the record and by alleging that the court relied on impermissible factors in
fashioning his sentence, including double-counting his criminal history. See
Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003).
Our review of the record does not reveal that the trial court relied on
impermissible factors or double-counted any factors in sentencing Appellant.
Moreover, the trial court provided its reasoning for imposing the sentences it
did. Specifically, before sentencing Appellant, the court stated as follows.
In fashioning a sentence here today, the [trial c]ourt is taking
into account the presentence investigation, mental health report,
prior record score, offense gravity score and range, the history
and character of [Appellant], his allocution here today, his failure
to accept responsibility, and balancing that against his
rehabilitative needs as well as the need to protect the public,
and the gravity of the offense as it relates, in particular, to the
victim in this case; he was shot in the chest. Based on those
factors, I’m taking all of them into consideration.
N.T., 3/3/2017, at 16. Accordingly, we conclude that Appellant has failed to
demonstrate that the trial court “ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” Commonwealth v. Johnson, 125 A.3d
822, 826 (Pa. Super. 2015).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/19
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