Com. v. Mitchell, E.

J-S53027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
EDWARD M. MITCHELL
Appellant No. 3176 EDA 2018
Appeal from the Judgment of Sentence September 14, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0004169-2017
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 24, 2019
Appellant, Edward M. Mitchell, appeals from his aggregate judgment of
sentence of 77-384 months’ imprisonment imposed for six convictions of theft
by deception, six counts of restricted activities, twelve counts of bribery, six
counts of conspiracy to commit theft by unlawful taking, six counts of
conspiracy to commit receiving stolen property and six counts of conspiracy
to commit theft by deception.1 Appellant argues, inter alia, that the trial court
erred by denying his motions for mistrial based on witnesses’ remarks during
trial. We affirm.
The trial court summarized the evidence as follows:
Upland Borough is a community located in Delaware County,
Pennsylvania. The Borough is roughly six-tenths of a square mile
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1 18 Pa.C.S.A. § 3922, 65 Pa.C.S.A. § 1103, and 18 Pa.C.S.A. §§ 4701 and
903, respectively. The jury found Appellant not guilty of two counts of
intercepting communications.
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and is home to approximately 3,200 residents. From 2009
through 2015, Appellant was the President of Upland Borough
Council. Michael Ciach was the Mayor of Upland Borough.
Christine Peterson was the Police Administrative Secretary and
also Vice President of Council. Shirley Purcival was the Borough
Manager. Moria Crawford was a member of Borough Council.
Nelson Ocasio was a patrolman for the Borough and eventually
Chief of Police. Thomas Willard was the owner of Logan Solutions.
Much like any town, personalities clashed, and perceived alliances
ensued. The 1,345 page trial record demonstrated that Upland
Borough was not exempt from the small town politics; however,
in an effort to streamline the voluminous record, the following
testimony relates directly to the charges Appellant faced and the
issues raised on appeal.
Ciach is currently employed by Upland Borough as the Borough
Manager and has been so employed since May 2017. As Borough
Manager, his duties include running the Borough’s day-to-day
operations, managing accounts payable and accounts receivable,
and managing the municipal facilities, such as: McQueen Hall, the
borough hall building, which houses the borough offices and
Council chambers (sometimes referred to as the meeting hall), the
Pavilion located in the park at 7th and Church Street, used for
various community events, and the Reese Center, located at 500
West 24th Street, which is currently used as a maintenance
garage but is targeted to be used eventually as a recreation
facility. In the same parking lot, but not connected to McQueen
Hall, is the Borough’s Police Department building.
The exteriors of the Borough buildings are protected by sixteen
surveillance cameras. The surveillance provided by these cameras
focuses on the outside of the building as well as the foyer of
Borough Hall; they do not provide footage of anything occurring
inside the Borough Hall offices or Council chambers. There is no
sound recording on any of the sixteen cameras.
Prior to his current position as Borough Manager, and relevant to
the timeframe of this case, Ciach was the Mayor of Upland
Borough from 2005 to 2017. During his time as Mayor, Ciach was
essentially the administrative head of the Police Department.
On May 3, 2016, while in his capacity as Mayor, Ciach needed to
review some of the building’s security camera footage, so he
called Willard, the owner of Logan Technology, who installed the
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system, and asked him to come over to Borough Hall and show
him how to access the footage. Ciach also wanted Willard to
explain how the system worked so that Ciach did not have to pay
Willard to come down to the Hall every time he needed to view
footage from the system. Between 2009 and 2015, Willard’s
company, including its employees, Michael Kinsler and Steven
Bradley, performed the vast majority, if not all, of Upland
Borough’s security work.
Willard came to the Borough Hall building and was showing Ciach
how to operate the DVR system attached to the cameras when
Ciach noticed a second, smaller DVR set that was completely
unbeknownst to Ciach. Ciach asked Willard what that DVR set
was attached to, and Willard told him that the small DVR set was
attached to the covert camera system. Surprised at the response,
Ciach asked Willard to explain the covert cameras; Willard pointed
to what appeared to Ciach to be motion sensors on the wall, which
were hidden cameras. When Willard pulled up the monitor
associated with the covert system, Ciach found himself staring at
footage of inside Council chambers as well as right behind the
secretary’s desk in the Borough Office, both places that cameras
were never approved to be monitoring.
Ciach asked Willard who authorized him to put in the covert
system, and Willard responded that Appellant told him to install
the system. Willard mentioned that the system footage could also
be sent to a camera or to a telephone, and that Appellant was
using that remote access feature to receive the footage on his
phone.
As Ciach further examined the system, he noticed that the wiring
seemed to indicate that there was also some type of audio
associated with the footage on the covert system. Ciach later
learned that he was correct in his suspicion, that there was audio
associated with separate microphones placed in the Council room
as well as in the secretary’s office in Borough Hall. Ciach had no
idea that the sensors in the Council room were actually hidden
cameras and certainly did not know that they were recording the
audio inside the room. After Willard left, Ciach began examining
the footage of the covert system, finding about thirty days’ worth
of footage, while the known DVR only had eight days’ worth of
footage, which immediately was suspicious to Ciach, because he
knew this DVR was capable of holding thirty days’ worth of
footage.
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Ciach contacted his solicitor about the covert cameras that he had
discovered and was advised to call Detective Lythgoe of Delaware
County CID. Ciach called Detective Lythgoe and described the
covert system to which he had just become aware. Detective
Lythgoe came down to Borough Hall and met with Ciach, who
showed him the covert system. The two examined the files on the
system which had both audio and video.
As Borough Manager, Ciach attended every Council meeting; at
no time did Council ever discuss, let alone approve, the installation
of a covert camera system in the meeting hall. While viewing the
footage, Ciach came across a recording from February 22, 2016,
that included video and audio footage of a meeting located in
Council chambers between himself, Detective Kazlow and
Sergeant Patterson about a separate investigation they were
conducting into the false arrest of Christine Peterson. At the time
of the meeting, neither Ciach nor the detectives involved had any
idea that they were being recorded.
After the discovery of the covert system, Ciach and the other
members of Council took independent action to investigate.
Randy Martin, a surveillance specialist, was hired to come in and
sweep the Borough for listening devices and other possible
cameras. Martin and his team located microphones at the base of
the front of Council’s desk; the microphones were placed into two
small holes which appeared to be drilled into the desk. Upon
locating the microphones, Ciach again called Detective Lythgoe,
who removed the microphones.
As a result of the covert system being located and the
investigation into Peterson’s arrest, CID conducted investigations
in Upland Borough on a regular basis. On March 25, 2016, Ciach
was asked to provide Detective Lythgoe with 1099 forms for Logan
Solutions; Ciach provided Detective Lythgoe with 1099 forms from
2009 through 2015. The 1099 forms reflected the following
income for Logan Solutions from Upland Borough:
1099 Form 2015: $ 47,953.70
1099 Form 2014: $ 82,764.95
1099 Form 2013: $ 299,163.00
1099 Form 2012: $ 142,169.50
1099 Form 2011: $ 93,254.49
1099 Form 2010: $ 158,432.00
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1099 Form 2009: $ 90,184.00
In relation to the Borough’s budget, Logan Solutions was paid a
disproportionate amount. In 2013 alone, Logan Solutions
received ten percent of the Borough’s entire budget. No other
vendor who ever dealt with the Borough was ever paid that much.
Ciach also provided Detective Lythgoe with the invoices from
Logan Solutions from the years of 2009-2015 and copies of checks
made out to Logan Solutions from the Borough. Despite all of the
money paid to Logan Solutions, Ciach never recalled a proposal or
an invoice voted on for Logan Solutions at any Council meeting;
nor did Ciach recall Logan Solutions going through the bidding
process during the years of 2009 through 2015.
Councilwoman Moria Crawford did not recall Logan Technology
ever going through the bidding process, either. In addition,
Crawford did not recall seeing any of the proposals for the work
contracted to Logan Technology. In addition, Crawford had no
idea that there were cameras or microphones in the Council hall
or chambers.
Shirley Purcival was employed with the Borough of Upland for
thirty-two years. Purcival started out as the police secretary,
moved to recording secretary and eventually Borough Manager.
Purcival retired in 2015 due to physical stress due to her
relationship with Appellant. Specifically, Purcival felt that as
Borough President, Appellant was unduly creating so much stress
on her that she was not sleeping and developed acute eczema.
During her time with the Borough, Appellant introduced Purcival
to Willard; Appellant told Purcival that he personally vouched for
Willard. Part of Purcival’s duties for Upland Borough required her
to be familiar with the bidding process for potential vendors.
When Appellant became President in 2008, Council was required
to bid out jobs over $10,500. That process included drawing up
specifications for the job, placing an ad in a general circulation
publication that bids would be accepted on a specific date, time
and place. Council would require sealed bids and bid bond,
normally ten percent of the bid prices. If a job was going to cost
between $4,000 and $10,000, Council was required to get three
quotes, by telephone or writing. During the years of 2009-2015,
Logan Solutions never participated in either type of bidding
process for the work performed in the Borough. As Borough
Manager at the time, these bids would have specifically come to
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her or the project engineer and Purcival would personally sit in on
the unsealing of the bids received. During her time, Logan
Solutions performed security services for Upland Borough,
including installing burglar alarms, fire alarms, outside security
cameras, and access control panels on the doors. The work
completed by Logan was always initiated by Appellant.
Most alarming to Purcival was the process in which Logan
Solutions was paid. At the direction of Appellant, Purcival was told
to pay Logan’s invoices as soon as they were received, which was
not the common practice for any other vendor doing work. In
addition, if an invoice was over a specific amount, such as
$10,000, Purcival was instructed by Appellant to pay the invoice
off in separate payments, as a solution to Logan bypassing the
bidding requirements. That was also not common practice for any
other vendor. Specifically, Purcival recalls a time where she took
two days off in the end of August. When she returned from those
two days, Appellant immediately came into her office and was
annoyed that she had not paid one of Logan’s invoices before
taking her two days off. Purcival told Appellant he must have
forgotten that she was off. Appellant was curt, stern, telling her
to pay the invoice right away. There were even times that Purcival
was instructed to pay invoices of Logan’s when the work had not
been completed. Purcival attempted to converse with Appellant
about her concerns; however, she was always met with animosity,
and Appellant made it clear on several occasions that she would
be terminated for noncompliance.
During Appellant’s reign as President, Nelson Ocasio was Chief of
Police in Upland Borough. The police station was located in a
separate building from Borough Hall. Prior to his time as Chief,
Ocasio was a patrolman with [sic] for the Borough. Ocasio
became Chief after Chief John Easton retired. Chief Easton retired
earlier than expected, so Ocasio was relatively young to be in the
role. Due to his age, Ocasio looked to Appellant and to other
members of Council for guidance and mentorship. Despite being
close with Appellant, Ocasio had no idea that covert cameras were
installed in Council’s meeting hall. During his time as Chief,
Ocasio had occasion to interact with then administrative assistant,
Peterson. In June 2015, Ocasio became aware that a set of dash
cameras that had been ordered for the police cars were missing,
a project that Logan Solutions had been working on. At the
direction of Appellant, Ocasio did not investigate the missing
police dash cameras. Appellant told Ocasio that the cameras were
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stolen by former employee, Michael Diggins, who was previously
fired for his drug use. Appellant told Ocasio that he “didn’t want
to put Diggins through the ringer since he had already been fired.”
Sometime later, Ocasio became aware that Appellant was lying to
Ocasio and Willard had never even ordered the cameras.
Eventually, Ocasio was suspended in February 2016 and fired from
Upland Borough in October 2016.
As aforementioned, Peterson is the administrative assistant for
the police department and the current president of Council.
During Appellant’s term as president, Peterson was Vice-President
of Council as well as the secretary for the Police Department.
Peterson has known Appellant for approximately thirty years.
Peterson saw Appellant quite frequently and often had lunch with
him. During her time, Peterson became aware of Willard through
Appellant. With regard to the missing dash cameras for the police
cars, Peterson was aware that the project was being handled by
Logan Solutions although never formally voted on by Council nor
taken to a proper bidding process. Peterson became aware that
Logan Solutions was paid twice for the cameras, interestingly
enough that Logan had been paid the first time for the cameras
despite the fact that he had never even ordered them. Peterson
told Appellant that the Borough was not going to pay for a second
set of cameras. Despite the conversation, Peterson learned that
Logan was paid a second time at the direction of Appellant. In
addition, when Peterson found out that Ocasio was told not to
investigate the missing cameras, she told Ocasio that it was his
job as Chief of Police to make the report.
In her capacity as Vice President, Peterson spoke with Appellant
several times about her concern that too much money was being
spent, that Logan Solutions was bypassing the bidding rules, and
was being paid for work that hadn’t even been done; Appellant
always told Peterson to just do what she was told to do. Appellant
told Peterson that the bidding was not an issue because he was
having the checks paid in smaller amounts to keep it under the
bidding requirements. Eventually, Peterson told Appellant that
she had growing concerns because she was signing the checks, to
which Appellant responded: “[H]a ha my name isn’t on anything.”
Eventually, Peterson began signing checks cut to Logan Solutions
as “CP as per EM.” In March 2015, a retirement party was held
for Purcival. Appellant told Peterson all of the time that he wanted
Purcival gone. At the party, Appellant walked past Peterson and
said: “[T]hat’s how we do it, kid.”
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Peterson had no knowledge of the covert camera system or the
corresponding microphones.
In January 2016, [Peterson] replaced Appellant as President of
Borough Council; Appellant was not happy with the situation. In
February 2016, Peterson found a post-it note on her desk; the
post-it note had a drawing of eyes and handcuffs and said “sorry”
with “you” underneath the eyes. Later that same day, Ocasio
arrested Peterson, an arrest that later was found to be without
any factual basis or probable cause. Later, emails were uncovered
between Ocasio and Appellant, discussing the impending arrest of
Peterson.
On March 16, 2016, Willard was interviewed by Detective Kelly
and Detective Lythgoe of CID. Willard was asked about the
missing cameras. Willard was afraid of getting in trouble, so at
that time, he lied. In August 2016, Willard confessed the truth
about the cameras to Detective Deery. Willard also told Detective
Deery everything that had been going on between him and
Appellant and their deal to provide Logan Solutions the work in
Upland in exchange for a “kick back” that typically ranged
anywhere between ten to fifteen percent. Willard told Detective
Deery that Appellant instructed him to break down his invoices
into smaller amounts to get around the bidding process. Willard
told Detective Deery that the prices of the jobs were often inflated
so that more money could be allocated from the Borough and
secured that Appellant would receive the cash for the kick back.
Detective Deery asked Willard if he would place a call to Appellant
and if that call could be recorded; Willard agreed and consented
to the recording. During the conversation, Willard repeatedly told
Appellant that he was contacted by detectives and that he was
nervous that their scheme was going to be uncovered; Appellant
always answered with: “[Y]ou were just paying me back the
money I loaned you.” Willard told Detective Deery that he had
never accepted a loan from Appellant. Ultimately, Willard was
arrested and pled guilty to several counts of theft-related offenses
in connection with the scheme.
At trial, each of the above witnesses were instructed to go through
each and every invoice ever submitted by Logan and confirm or
deny whether the projects ever went to bid and whether Council
ever voted on the bills before they were paid. Each witness
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testified that none of the invoices were ever sent to bid nor were
the bills ever voted on prior to be paid to Willard.
At trial, Willard testified that he and Appellant had worked out a
deal where Willard would cash the checks that he received from
the Borough and then he would give a percentage of that cash to
Appellant. That percentage depended on the size of the invoice
but typically ranged from ten to twenty percent of the value of the
check. During his testimony, Willard explained in detail every
project he ever was contracted to complete for the Borough, the
invoices he submitted, the payments he received, and the
percentage of each job that he gave back to Appellant.
Trial Court Opinion, 5/17/19, at 2-13 (with minor stylistic revisions).
In December 2016, Appellant was charged with the offenses listed
above. On July 11, 2018, one day before trial, Appellant moved for a
continuance, and the trial court denied the motion. The jury returned its
verdict after a five-day trial. On September 14, 2018, the court imposed
sentence. Appellant filed timely post-sentence motions, which the court
denied, and a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues in this appeal:
I. Was the trial court in error for denying [Appellant’s] motion for
a continuance when long-requested substantial discovery in
excess of one thousand (1000) pages was not provided until five
(5) days prior to the start of trial?
II. Was the trial court in error for denying [Appellant’s] motion for
a mistrial when the Commonwealth asked and elicited testimony
from Michael Ciach which amounted to negative character
testimony concerning [Appellant] in violation of a pretrial ruling
by the court?
III. Was the trial court in error for denying [Appellant’s] motion
for a mistrial when witness Peterson testified about [Appellant]
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threatening people and bringing up a false arrest that Peterson
experienced which was so prejudicial that the judge’s instruction
to strike that answer was not sufficient to cure?
IV. Was the trial court in error at the time of sentencing when the
sentencing judge interjected his own personal experience
involving local government and verbally mentioning that
experience during the time of [Appellant’s] sentencing?
V. Was the trial court in error for not permitting all available
defense witnesses to testify at the time of sentencing?
Appellant’s Brief at 5.
In his first argument, Appellant contends that the trial court abused its
discretion by refusing to grant his motion requesting a continuance one day
before jury selection. Trial counsel stated that he and his expert witness
needed additional time to prepare because (1) two days earlier, the prosecutor
provided nearly 1,400 pages of discovery material, and (2) during the previous
week, the prosecutor provided a supplemental expert report. The discovery
material, however, was Appellant’s own bank records. The prosecutor stated
that the Commonwealth produced these records in September 2017. The trial
court denied the continuance because either the Commonwealth previously
provided the records to counsel, or they were readily available to Appellant as
his records.
The defendant must move for a continuance not later than 48 hours
before the time scheduled for trial. Pa.R.Crim.P. 106(D). The court may grant
a continuance “in the interests of justice.” Pa.R.Crim.P. 106(A). When the
defendant requests a continuance within 48 hours of trial, the court may grant
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the request “only when the opportunity [for making the motion] did not
previously exist, the defendant was not aware of the grounds for the motion,
or the interests of justice require it.” Pa.R.Crim.P. 106(D). The trial court
must state on the record the reasons for granting or denying the continuance.
Id. We review the trial court’s decision to grant or deny continuances for
abuse of discretion. Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa.
2014).
The trial court acted within its discretion by denying Appellant’s motion
for continuance. The records in question were Appellant’s own bank records.
As the court observed in its opinion, even if the Commonwealth did not
produce these records until shortly before trial, they belonged to Appellant
and were always available to him and his attorneys. Trial Ct. Op. at 15; see
also Commonwealth v. Spotz, 756 A.2d 1139, 1153-54 (Pa. 2000) (where
Commonwealth did not provide transcripts from defendant’s prior trials in
other counties until first day of trial in the case on appeal, no discovery
violation because transcripts were equally available to defense and
prosecution). Moreover, Appellant’s two attorneys were capable of reviewing
the material before or during trial. Commonwealth v. Sandusky, 77 A.3d
663, 672 (Pa. Super. 2013) (defendant’s right to effective assistance of
counsel not violated by denial of his request for continuance in order for
counsel to review voluminous supplemental discovery received close to trial,
where defense team was capable of sorting through material while trial was
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ongoing). In fact, it appears that Appellant’s counsel did review them,
because Appellant’s expert witness, a forensic accountant, testified that in the
course of preparing her opinion, she reviewed five to ten bank statements that
she received from trial counsel. Tr., 7/19/18, at 66-67, 88. Accordingly,
Appellant’s first argument fails.
Next, Appellant asserts that the trial court erred by denying his motion
for mistrial during Ciach’s trial testimony. The prosecutor asked Ciach,
“[W]hat was [Appellant’s] power as borough council president?” Tr., 7/16/18,
at 147. The witness replied: “[Appellant] controlled everything. Basically, his
word was what you did . . .” Id. Trial counsel objected that the witness was
giving “reputation testimony” and moved to strike. Id. at 148-49. The
prosecutor explained that the answer was nonresponsive. Id. Trial counsel
also moved for a mistrial. The trial court sustained the objection, denied the
motion for mistrial, struck the testimony, and instructed the jury to disregard
the answer, stating, “What the power is and what the perception of it are two
different things. Power [is] controlled under the Borough Code[.]” Id. at 150.
“A mistrial is an extreme remedy that is required only where the
challenged event deprived the accused of a fair and impartial trial.”
Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011). “A trial court
may grant a mistrial only where the incident upon which the motion is based
is of such a nature that its unavoidable effect is to deprive the defendant of a
fair trial, preventing the jury from weighing and rendering a true verdict.”
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Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013). When the
defendant seeks a mistrial based on a witness’s testimony, we consider
whether the prosecutor deliberately elicited the testimony, the prejudice
caused by the testimony, and whether the court gave curative instructions
that were adequate to overcome prejudice. Commonwealth v. Briggs, 12
A.3d 291, 338-39 (Pa. 2011). We review the denial of a mistrial for abuse of
discretion. Travaglia, 28 A.3d at 879.
Here, the prosecutor did not deliberately elicit Ciach’s testimony that
Appellant controlled everything in the borough or that people did what he told
them to do. The thrust of the prosecutor’s question to Ciach was what
statutory powers Appellant had as Council president, not what power he
actually exerted or what power people regarded him as having. Further,
Ciach’s remark was an isolated incident in a trial that covered well over 1,000
pages of testimony, and the Commonwealth did not repeat or exploit it in any
fashion. Commonwealth v. Murphy, 657 A.2d 927, 934 (Pa. 1995)
(defendant not entitled to mistrial when defense witness remarked during
cross-examination that defendant was on “death row”; prosecutor did not
intentionally elicit remark, but, rather, witness volunteered information and
remark was isolated and not repeated or exploited in any way). Finally, the
trial court gave a curative instruction that the powers in question were what
the Borough Code prescribed, not what people perceived them to be. We
presume that jurors follow the court’s instructions, Commonwealth v.
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Aikens, 168 A.3d 137, 143 (Pa. 2017), and Appellant gives us no reason to
believe that the jury disregarded the present instruction. Accordingly,
Appellant’s argument fails.
Third, Appellant argues that the court erred by failing to grant a mistrial
based on Peterson’s testimony that she was afraid to confront Appellant. The
prosecutor asked: “Were you afraid to go against [Appellant]?” Tr., 7/17/18,
at 156. Peterson answered: “Absolutely . . . Because if you did then he
threatened people . . . I got falsely arrested or he did some report to where it
probably looked like there was something going on in the police department.
Or he threatened my 73-year-old mother that it would be [a shame] if she
didn’t have anywhere to live[.]” Id. at 156-57. Trial counsel objected, moved
to strike and requested a mistrial. The trial court denied the motion for
mistrial but instructed the jury to disregard the answer. Id. at 157-58.
Subsequently, the court emphasized that the jury was required to “accept and
follow” the court’s “rulings and instructions” on matters of law. Tr., 7/20/18,
at 5.
The court properly denied Appellant’s motion for mistrial. Like Ciach’s
remark discussed above, Peterson’s testimony did not prejudice Appellant,
because it was an isolated incident in a lengthy trial, the court instructed the
jury to disregard Peterson’s answer, and there is no reason to believe that the
jury ignored the court’s instruction. Furthermore, Peterson’s statement was
cumulative of other testimony, admitted without objection, that Appellant was
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feared in Upland Borough. See Tr., 7/16/18, at 343 (Purcival’s testimony that
she processed invoices at Appellant’s direction because she was afraid of
termination if she did not do so); 354 (Purcival: “people were afraid of
retaliation if they went against what [Appellant] wanted”); 355 (Purcival:
“[Appellant] had a saying. He would always say, I’m going to get them and
that means that that person would be terminated, which he did several
employees and he was not pleasant about it. I sat in on one of them”); Tr.,
7/17/18, at 144 (Peterson: “you didn't go against [Appellant]. Everyone was
afraid of him. If you didn’t do what he said you paid”); see generally
Commonwealth v. Young, 748 A.2d 166, 176 (Pa. 1999) (although
testimony might have been improper, “it was merely cumulative of other
evidence concerning defendant’s [fraudulent] scheme and had no effect on
the jury’s verdict”).
In his next argument, Appellant contends that the court imposed an
excessive sentence by relying on an impermissible factor, its own experience
in Borough government. We disagree.
During sentencing, Appellant’s attorney objected to the
Commonwealth’s recommendation of a prison sentence of six to forty-two
years by emphasizing that Appellant was elderly and in poor health, had no
prior convictions and that other criminals did not receive sentences that high:
At his age, that’s essentially a life sentence. Drug dealers don’t
get sentences that high. Robbers don’t get sentences that high.
People who are convicted of aggravated assault don’t get
sentences that high. There was a woman . . . who was employed
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by the District Attorney’s Office who stole money from the District
Attorney’s Office. I believe it was $700,000-some. I think her
sentence, the maximum sentence that she received was on 27
months.
N.T., 9/14/18, at 20. The court responded:
Let me just tell you my perspective’s a little different than most.
I served eight years as a president of Borough Council. I served
six years as a township commission, two of those as president.
So, I have a very good understanding of what the role of an
elected official in a local municipality. That’s a perspective that I
see and have dealt with first hand for fourteen years. So, I know
what’s expected of an elected official, so I’ve taken that into
consideration just so that you understand.
N.T., 9/14/18, at 22. Counsel stated: “I do, Judge. I’m not suggesting that
you not take that into consideration, but I'm also urging that the Court look
at the mitigating factors in this case too -- my client's age and his poor health
and lack of prior record.” Id. The court answered: “I have looked at all of
the factors, believe me.” Id.This argument relates to the discretionary aspect of Appellant’s
sentence. Where an appellant challenges the discretionary aspect of a
sentence, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence [pursuant to Rule
of Appellant Procedure 2119(f), Pa.R.A.P. 2119(f); and (4)
whether the concise statement raises a substantial question that
the sentence is [not] appropriate under the [S]entencing [C]ode.
Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018). Here,
defense counsel arguably waived any objection to the court’s comment by
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stating during sentencing, “I’m not suggesting that you not take [the court’s
knowledge of the role of borough officials] into consideration.” In addition,
defense counsel failed to comply with Pa.R.A.P. 2119(f)’s requirement to
include a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of sentence in his brief.
Nevertheless, we decline to find waiver. We note that Appellant complied in
substantial part with the four-part test for preserving this issue for appeal. He
filed a timely appeal, objected to the court’s comment in a post-sentence
motion, and raised a substantial question by asserting that the court relied on
an improper sentencing factor. Commonwealth v. Peck, 202 A.3d 739, 746
(Pa. Super. 2019). Furthermore, we find it important that the Commonwealth
did not argue in its appellate brief that Appellant waived this issue. We have
held that “in the absence of any objection from the Commonwealth, we are
empowered to review claims that otherwise fail to comply with Rule 2119(f).”
Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006). The
question is even closer here, because Appellant not only ran afoul of Rule
2119(f) but appeared to concede the issue through counsel’s statement at
sentencing. Nevertheless, based on both our preference for resolving issues
on their merits and the Commonwealth’s failure to object, we choose to
address Appellant’s sentencing issue.
Turning to the substance of Appellant’s argument,
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
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absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing 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.
When imposing a sentence, the sentencing court is required to
consider the sentence ranges set forth in the Sentencing
Guidelines, but i[s] not bound by the Sentencing Guidelines.... A
court may depart from the guidelines “if necessary, to fashion a
sentence which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the
victim and the community.” When a court chooses to depart from
the guidelines however, it must “demonstrate on the record, as a
proper starting point, his awareness of the sentencing guidelines.”
Further, the court must “provide a contemporaneous written
statement of the reason or reasons for the deviation from the
guidelines.
When reviewing a sentence outside of the guideline range, the
essential question is whether the sentence imposed was
reasonable. An appellate court must vacate and remand a case
where it finds that “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42
Pa.C.S.[ ] § 9781(c)(3).
Peck, 202 A.3d at 746.
When reviewing the record, Section 9781 requires that we consider: (1)
the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the opportunity of the sentencing court
to observe the defendant, including any presentence investigation; (3) the
findings upon which the sentence was based; and (4) the guidelines
promulgated by the commission. 42 Pa.C.S.A. § 9781(d). “[A] sentence may
be found to be unreasonable after review of Section 9781(d)’s four statutory
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factors.” Peck, 202 A.3d at 746. A sentence may also be unreasonable if it
was imposed “without express or implicit consideration” of the protection of
the public, the rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the victim and the
community as required by 42 Pa.C.S.A. § 9721(b). Id. at 746-47. “Where a
[pre-sentence investigation report] exist[s], we [] presume that the [trial
court] was aware of relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory factors. A
[PSI] constitutes the record and speaks for itself.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014).
In this case, the court reviewed the parties’ sentencing memoranda and
the pre-sentence investigation report, N.T., 9/14/18, at 41, and it
comprehensively explained its reasons for imposing a sentence of
imprisonment, stating:
At the time this investigation commenced, you served as president
of Upland Borough Council. As council president, you set the
agenda and chaired the council meetings. That was the full extent
of your statutory authority. The remainder is vested in the council
as a whole or the mayor. As to the police department, it is the
mayor who oversees it on a day-to-day basis and not you as
president of council. Upland had a borough manager who was
responsible for the day-to-day activities of the staff and who
carried out the policies adopted by the council, and you were not
the micromanager. Unfortunately, as the testimony clearly
demonstrated, you usurped much of this responsibility and
authority through threats, bullying, and intimidation. As the
testimony unfolded in this case, I was astounded at your
arrogance and self-righteousness. You exhibited total disdain for
the mayor or the other members of council, the Borough
employees, and the people of Upland. Much like a child predator,
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you slowly groomed these somewhat naive and trusting persons
into thinking you had the best interest of the Borough at heart.
As a result, council, to its detrimental reliance, abdicated much of
its responsibility and oversight. You [d]evolved into a ruthless
dictator who took revenge on anyone who had the audacity to
question your actions . . . You are a thief. You stole from the
taxpayers under the guise of being Robin Hood, except you were
the recipient of the alleged benevolence. You are greedy. You
are pompous. You violated your oath of office, you denigrated the
position of borough councilman, you defamed the Borough of
Upland, and you made fools of the electorate. Having read the
Pre-Sentence Investigation Report, I was floored when I read the
following and I quote, “[Appellant] denied any wrongdoing. He
claimed anything that was paid council approved. He denied
receiving any money or kickbacks from anyone.” This is pure
baloney. In your statement to the detectives, you admit you got
money.
Id. at 41-44. The court determined that Appellant did not deserve lenience
due to his age (76) or poor health because he showed no remorse and
undercut the faith of the electorate. Id. at 44. The record fully supports all
of the court’s points. Its careful and extensive assessment of Appellant’s
conduct demonstrates that its sentencing decision was the product of careful
and sober deliberation.
We do not think that the trial court considered an improper sentencing
factor by mentioning that it had served as a borough official before taking the
bench and knew what was expected of borough officials. Appellant interprets
this remark to mean that the court arrived at its sentence by subjectively
factoring in its own experience as a borough official. We construe the court’s
comment differently. The court made this remark in response to defense
counsel’s claim that Appellant deserved a more lenient sentence than robbers
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and other violent offenders. The court merely intended to convey, in so many
words, that it understood the role of borough officials and could ascertain
when crimes committed in public office were as serious as robberies or
assaults. Viewed in this context, the court’s remark was permissible under
Section 9721(b) to reflect its grasp of the impact of Appellant’s offenses on
the community.
In his final argument, Appellant complains that the court abused its
discretion by limiting the number of character witnesses at sentencing to
three: Appellant’s wife and daughter and a veterinarian who posted
Appellant’s pre-trial bail.2 We see no abuse of discretion.
The admissibility of evidence, including sentencing evidence, rests with
the sound discretion of the trial court. Commonwealth v. King, 182 A.3d
449, 455, (Pa. Super. 2018). Just as courts may limit the number of character
witnesses during trial when additional testimony would be cumulative,
Commonwealth v. Owens, 649 A.2d 129, 136 (Pa. Super. 1994) (court
properly limited defendant to three reputation witnesses), so, too, was it
permissible for the trial court to restrict Appellant to three character witnesses
during sentencing, since Appellant failed to demonstrate that the additional
witnesses would have said something new or different in Appellant’s favor.
For these reasons, we affirm Appellant’s judgment of sentence.
____________________________________________
2 Defense counsel had five other persons stand up who were ready and willing
to speak on Appellant’s behalf.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/19
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