Com. v. Tunner, W

J-S79002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAMS TUNNER, AKA TUNNER
WILLIAMS,
Appellant No. 2392 EDA 2012
Appeal from the Judgment of Sentence entered August 2, 2012,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0002730-2010
BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 17, 2014
Williams Tunner, aka Tunner Williams1 (“Appellant”), appeals from the
judgment of sentence imposed after a jury convicted him of criminal
conspiracy.2 After careful review, we vacate the judgment of sentence and
remand for resentencing.
The trial court summarized the pertinent facts and procedural history
as follows:
On May 9, 2008, the Narcotics Field Unit of the
Philadelphia Police Department set up surveillance in the area of
55th Street and Warrington Avenue in the City and County of
____________________________________________
1
Appellant is also referenced in the record as William Turner.
2
18 Pa.C.S.A. § 903.
* Retired Senior Judge assigned to Superior Court.
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Philadelphia. A confidential informant had relayed information
that drugs were being sold out of a residence located at 5501
Warrington Avenue. Upon arrival at that site, Sergeant Robinson
searched the confidential informant for any drugs or money. At
approximately 7:30 p.m., Sergeant Robinson set up surveillance
on 55th Street and observed the confidential informant approach
5501 Warrington Ave. The Confidential Informant knocked on
the door and was allowed inside the residence. Less than a
minute later, an unknown black male exited the home and
walked south on 55th Street, past Sergeant Robinson’s location.
Officer Simmons then picked up surveillance of the black male
from his location further down 55th Street. Officer Simmons saw
the unidentified black male enter the rear passenger side of a
white Buick containing three other men. After approximately 1
to 2 minutes, the black male exited the vehicle. The unidentified
black male then returned to 5501 Warrington Ave.
Approximately 15 seconds later, the confidential informant
exited the residence and rendezvoused with Sergeant Robinson
at a predetermined location. The confidential informant was
found to be in possession of three red ziplock packets of what
was later identified as crack cocaine. The informant also did not
have the forty dollars of prerecorded buy money with him.
After the unidentified black male exited the Buick, the car
began driving away and was stopped on Belmar Avenue by
Officer Simmons, Officer London and two uniformed Philadelphia
Police Officers. The occupants were ordered to exit the vehicle.
Officer London secured the driver, later identified as Dean
Bloodworth. Mr. Bloodworth was found to be in possession of
$80 USC, forty of which was the prerecorded buy money. As the
Appellant exited the passenger side of the vehicle, Officer
Simmons observed an amber pill bottle fall into the street. The
pill bottle contained 13 red ziplock packets matching those
packets found on the confidential informant, containing what was
later identified as crack cocaine. Officer Simmons immediately
recognized the bottle’s contents as narcotics when he saw it.
Appellant and Mr. Bloodworth were arrested and brought to the
Philadelphia Police station. Both the drugs found on the
confidential informant and the drugs found in the pill bottle
tested positive for cocaine base.
Trial Court Opinion, 12/19/13, at 2-3 (citations to record omitted).
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Appellant was charged with criminal conspiracy to possess controlled
substances with intent to deliver (18 Pa.C.S.A. § 903; 35 P.S. § 780-
113(a)(30)); possession with intent to deliver (35 P.S. § 780-113(a)(30));
and simple possession of a controlled substance (35 P.S. § 780-113(a)(16)).
A jury trial commenced on March 13, 2012, and on March 14, 2012, the jury
found Appellant guilty of criminal conspiracy, and not guilty of the remaining
charges.
Following a hearing on August 2, 2012, the trial court sentenced
Appellant to 4½ to 9 years of imprisonment. Appellant filed a post-sentence
motion on August 10, 2012, and a notice of appeal on August 29, 2012. On
December 21, 2012, the trial court entered an order denying Appellant’s
post-sentence motion. Appellant raises the following issues for our review:
1. Whether the evidence was sufficient to sustain a verdict of
guilty.
2. Whether the verdict was against the weight of the
evidence.
3. Whether the trial court erred when it answered “yes” to
the question of whether or not the jury could return a
verdict of guilt on the charge of conspiracy only?
4. Whether the sentence imposed is illegal, improper, or
excessively punitive where [Appellant] could be sentenced
to a term of imprisonment of a greater degree than that of
which he was convicted and where the sentence (4½ to 9
years) was six months shy of the statutory maximum and
was beyond the aggravated range recommended in the
sentencing guidelines. The Court failed to consider the
guidelines in fashioning an appropriate sentence.
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5. Whether the trial court erred in permitting Sgt. Davis to
testify as to the [Appellant’s] character and/or a victim
impact statement regarding his encounters with
[Appellant] and his family.
Appellant’s Brief at 3.
In his first issue, Appellant argues that the evidence was insufficient to
support his conspiracy conviction. Appellant’s Brief at 9-12. When
reviewing a challenge to the sufficiency of the evidence, we are bound by
the following:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth's
burden may be met by wholly circumstantial evidence and any
doubt about the defendant's guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).
Appellant maintains that his mere presence in a vehicle was an
insufficient basis for the trial court to conclude that he was engaged in a
conspiracy. Appellants Brief at 10-12. In order to sustain a criminal
conspiracy conviction, the Commonwealth must prove: “(1) an intent to
commit or aid in an unlawful act, (2) an agreement with a co-conspirator
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and (3) an overt act in furtherance of the conspiracy.” Commonwealth v.
Thomas, 65 A.3d 939, 943 (Pa. Super. 2013) (citations omitted).
Appellant is correct that “[t]o establish complicity, mere presence at
the scene of a crime and knowledge of the commission of criminal acts is not
sufficient.” Commonwealth v. Knox, 50 A.3d 749, 756 (Pa. Super. 2012)
(citation omitted). However:
a conspiracy may be inferred where it is demonstrated that the
relation, conduct, or circumstances of the parties, and the overt
acts of the co-conspirators sufficiently prove the formation of a
criminal confederation. The conduct of the parties and the
circumstances surrounding their conduct may create a web of
evidence linking the accused to the alleged conspiracy beyond a
reasonable doubt. Even if the conspirator did not act as a
principal in committing the underlying crime, he is still criminally
liable for the actions of his co-conspirators in furtherance of the
conspiracy.
Knox, 50 A.3d at 755 quoting Commonwealth v. McCall, 911 A.2d 992,
996–97 (Pa. Super. 2006) (citation omitted). See also Thomas, 65 A.3d at
943 (“Because it is difficult to prove an explicit or formal agreement to
commit an unlawful act, such an act may be proved inferentially by
circumstantial evidence, i.e., the relations, conduct or circumstances of the
parties or overt acts on the part of the co-conspirators.”) (citations omitted).
Here, the record indicates that evidence was sufficient to support the
conspiracy conviction. As the trial court explained:
Appellant was in a vehicle that was entered by an unknown male
who had come from a home where a confidential informant said
drugs were being sold. That unknown male then returned to the
home and provided the informant with several red baggies of
crack cocaine. As soon as Appellant was removed from his
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vehicle, a pill bottle containing several red baggies of crack
cocaine fell from where he had been seated. Those baggies
matched the ones that were recovered from a confidential
informant. The other occupant of that vehicle was found to be in
possession of $40 in pre-recorded buy money that had been
provided to the confidential informant. The jury determined that
the evidence showed that Appellant and the vehicle’s other
occupant had entered into an agreement with a shared criminal
intent and committed an overt act in furtherance of their
conspiracy.
Trial Court Opinion, 12/19/13, at 7.
Upon review, we agree with the trial court. The jury acted within its
province as factfinder in concluding from the evidence that Appellant was
involved in the transaction with the unknown male who exited the residence
at 5501 Warrington, and received drugs from Appellant and/or Mr.
Bloodworth in exchange for the $40 of pre-recorded buy money provided to
him by the confidential informant, before returning to the residence to
deliver the drugs, particularly since the drugs were retrieved from
Appellant’s side of the car. Accordingly, Appellant's sufficiency issue is
without merit.
Appellant next argues that the verdict was against the weight of the
evidence. Our scrutiny of whether a verdict is against the weight of the
evidence is governed by the principles set forth in Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted):
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence and
to determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
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Moreover, where the trial court has ruled on the weight
claim below, an appellate court's role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
In his weight claim, Appellant argues that the evidence was
contradictory and unreliable. “A new trial is warranted on a challenge to the
weight of the evidence only if the verdict is so contrary to the evidence as to
shock one's sense of justice. Furthermore, issues of credibility are left to the
trier of fact; the jury is free to accept all, part, or none of the witness
testimony.” Commonwealth v. Russell, 665 A.2d 1239, 1246-1247 (Pa.
Super. 1995) (citations omitted). Here, the jury found credible the
testimony of Officers Robinson and Simmons. Specifically, the jury found
credible the officers’ testimony about their recovery of cocaine that fell from
Appellant’s side of the vehicle, and $40 of pre-recorded buy money from Mr.
Bloodworth. Furthermore, although Appellant baldly asserts that the
testimony of Commonwealth’s witnesses was unreliable and contradictory,
Appellant fails to cite the purported inconsistent and contradictory
testimony. Credibility determinations are for the jury to resolve and we will
not disturb such credibility determinations on appeal. See Commonwealth
v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995) (it is solely for the
finder of fact to determine the credibility of witnesses and to resolve any
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conflicts or inconsistencies in the evidence). Appellant’s weight of the
evidence claim fails.
In his third issue, Appellant argues that the trial court erred in
informing the jury that it could return a verdict of guilty on the charge of
conspiracy only. Appellant refers to a written jury question submitted by the
jury to the trial court during deliberations on March 15, 2012. The jury’s
question was:
Is it legally possible to convict of conspiracy without convicting
of possession or intent to distribute?
Jury Question, 3/15/12.
In response to the jury’s question, the trial court stated on the record:
The simple answer to that is yes. Each charge stands by itself.
So PWID is one crime. The criminal conspiracy is a completely
separate and distinct crime, as is the KI.
N.T., 3/15/12, at 57.
Appellant challenges the trial court’s decision to inform the jury that
they could convict him solely of conspiracy. In Commonwealth v. Riley,
811 A.2d 610, 618 (Pa. Super. 2002) we explained, “as conspiracy requires
proof only of an agreement and an overt act in furtherance of the
conspiracy, a defendant may be found guilty of conspiracy without being
convicted of the underlying offense.” In other words, “commission of the
underlying crime is not an element of criminal conspiracy. ‘Conspiracy to
commit a crime and the underlying crime itself are two entirely separate
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offenses with separate elements required for each.’” Commonwealth v.
Thoeun Tha, 64 A.3d 704, 711 (Pa. Super. 2013) quoting Commonwealth
v. Johnson, 719 A.2d 778, 791 (Pa. Super. 1998). Appellant’s claim that
the trial court erred in informing the jury that they could convict him of
conspiracy while finding him not guilty of the remaining charges is therefore
meritless. See Commonwealth v. Smith, 606 A.2d 939 (Pa. Super. 1992)
(finding that apparent inconsistency where the jury found the appellant
guilty of the conspiracy charge while finding him not guilty of delivery and
possession was not grounds for relief).
In his fourth issue, Appellant argues that the trial court imposed an
illegal sentence and/or abused its sentencing discretion. Appellant’s Brief at
17-23. “If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence must be
vacated. Likewise, a sentence that exceeds the statutory maximum is
illegal. If a court “imposes a sentence outside of the legal parameters
prescribed by the applicable statute, the sentence is illegal and should be
remanded for correction.” Commonwealth v. Infante, 63 A.3d 358 (Pa.
Super. 2013). Appellant’s brief is devoid of any support or argument for his
assertion that the sentence was illegal other than an assertion that “the jury
did not have on the verdict sheet what substantive offense the conspiracy
was to commit.” Appellant’s Brief at 21. Appellant fails to develop this
argument about legality with any cogent discussion. Moreover, Appellant
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acknowledges that the sentence did not exceed the statutory maximum of
60 months. See Appellant’s Brief at 18. Given the lack of any development
of Appellant’s challenge to the legality of his sentence, we decline to address
it.
However, Appellant also argues that the trial court abused its
discretion when it sentenced him to 4½ to 9 years of imprisonment. A
challenge to the discretionary aspects of a sentence is not appealable as of
right. Rather, Appellant must petition for allowance of appeal pursuant to 42
Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.
Super. 2004).
Before we reach the merits of this [issue], we must engage
in a four part analysis to 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; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Appellant has preserved his claim by filing a post-sentence motion and
timely notice of appeal. Appellant has additionally included in his brief a
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concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at
17-18. Therefore, we proceed to determine whether Appellant has raised a
substantial question for our review.
Appellant argues that the trial court abused its discretion when it
imposed a sentence for conspiracy well beyond the aggravated range of the
sentencing guidelines, and in so doing, failed to give proper consideration to
mitigating factors, and failed to state on the record the reasons for the
sentence. Appellant’s Brief at 9, 17-23. Accordingly, Appellant asserts that
his sentence was excessive. “A substantial question will be found where the
defendant advances a colorable argument that the sentence imposed is
either inconsistent with a specific provision of the code or is contrary to the
fundamental norms which underlie the sentencing process. A claim that the
sentencing court imposed an unreasonable sentence by sentencing outside
the guideline ranges presents a “substantial question” for our review.”
Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). See also
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en
banc) (a substantial question is raised where an appellant alleges that the
sentencing court erred by imposing an aggravated range sentence without
consideration of mitigating circumstances). Appellant has thus presented a
substantial question and we proceed to review his 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
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manifest abuse of discretion.” Commonwealth v. Garcia-Rivera, 983
A.2d 777, 780 (Pa. Super. 2009).
More specifically, 42 Pa.C.S.A. § 9721(b) offers the following
guidance to the trial court's sentencing determination:
[T]he sentence imposed should call for confinement
that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and
the rehabilitative needs of the defendant.
***
The ... weighing of factors under 42 Pa.C.S. § 9721(b) [is]
exclusively for the sentencing court, and an appellate court could
not substitute its own weighing of those factors. The primary
consideration, therefore, is whether the court imposed an
individualized sentence, and whether the sentence was
nonetheless unreasonable for sentences falling outside the
guidelines, or clearly unreasonable for sentences falling within
the guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-876 (Pa. Super. 2012)
(citations omitted).
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the sentencing
court applied the guidelines erroneously; (2) the sentence falls within the
guidelines, but is “clearly unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Bricker, 41 A.3d at 876
“[T]he term ‘unreasonable’ generally means a decision that is either
irrational or not guided by sound judgment. [A] sentence can be defined as
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unreasonable either upon review of the four elements contained in §
9781(d) or if the sentencing court failed to take into account the factors
outlined in 42 Pa.C.S.A. § 9721(b).” Commonwealth v. Daniel, 30 A.3d
494, 497 (Pa. Super. 2011), quoting Commonwealth v. Walls, 926 A.2d
957 (Pa. 2007). However, “rejection of a sentencing court's imposition of
sentence on unreasonableness grounds [should] occur infrequently, whether
the sentence is above or below the guidelines ranges.” Commonwealth v.
Macias, 968 A.2d 773, 777 (Pa. Super. 2009) quoting Walls, 926 A.2d
at 964.
Pursuant to 42 Pa.C.S.A. § 9871, an appellate court must have regard
for the following statutory factors in our review of the certified record: (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. § 9871(d)(1)-(4).
“In every case where the court imposes a sentence ... outside the
guidelines adopted by the Pennsylvania Commission on Sentencing ... the
court shall provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines. 42 Pa.C.S.A. § 9721(b).
However, [t]his requirement is satisfied when the judge states his reasons
for the sentence on the record and in the defendant's presence ... in open
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court.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super.
2014).
[Section 9721(b)] requires a trial judge who intends to sentence
a defendant outside the guidelines to demonstrate on the record,
as a proper starting point, his awareness of the sentencing
guidelines. Having done so, the sentencing court may deviate
from the guidelines, if necessary, to fashion a sentence which
takes into account the protection of the public, the rehabilitative
needs of the defendant, and the gravity of the particular offense
as it relates to the impact on the life of the victim and the
community, so long as he also states of record the factual basis
and specific reasons which compelled [him] to deviate from the
guideline range.
***
The court's statement of reasons for deviating from the
guidelines serves not only as a record of the court's rationale for
the deviation but also as evidence that the court considered the
guidelines. We cannot analyze whether there are adequate
reasons for the deviation unless it is first apparent that the court
was aware of, and considered the guidelines.
Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995)
(citations omitted).
Here, the guidelines recommended a standard range of sentence of 15
to 21 months, +/- 6 months in the mitigated and aggravated ranges. N.T.,
8/2/12, at 11. Appellant’s sentence of 4½ to 9 years fell outside the
aggravated range of the guidelines.
At the sentencing hearing, the trial court provided the following
reasons on the record for its sentence:
I have reviewed everything and I didn’t have an
opportunity to review the [Preliminary Arraignment Reporting
System] PARS. I am not claiming I am not going to. I have
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reviewed everything and the PSI and the prior record score in
great detail. I paid particular attention to the presentence
investigation.
I told you to take it seriously and you told the officer that
this is what hanging around with the wrong crowd gets you.
That is not what it gets, it gets you shot. And dealing in drugs
and that is a conspiracy and you openly fought me on that.
I don’t really think you are remorseful for what you have
done. And I told you if things don’t go your way, it is a
minimum of 2 to 4. Under the circumstances considering
everything and you keep rolling the dice, you did come up snake
eyes this time. It is your right.
Based on the totality of everything, it is 4 and a half to 9
years.
N.T., 8/2/12, at 39.
At sentencing, the trial court made clear that it had “reviewed the PSI
and the prior record score in great detail.” Id. However, although cognizant
of Appellant’s prior record, the trial court did not set forth the relevant
guideline ranges, or indicate that it was aware of and considered the
sentencing guidelines before electing to depart from them.
Moreover, the trial court’s brief explanation for its sentence failed to
state the “factual basis and specific reasons” which compelled the drastic
upward departure from the guideline range. Johnson, supra. Although the
trial court noted that it had “reviewed the PSI” and felt that Appellant was
not remorseful, the trial court failed to state what factors revealed in the PSI
report it was relying on to warrant the upward deviation, or how Appellant’s
lack of remorse was so atypical as to warrant imposition of a sentence so far
in excess of the guideline range. Additionally, the record does not reflect
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that the trial court took into account the relevant sentencing factors
enumerated in § 9721(b) -- including 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 Appellant’s rehabilitative needs -- before sentencing
him outside of the guidelines.
“[A]lthough sentencing judges have broad discretion, they do not
have unfettered or unchecked discretion. Therefore, when a sentence
exceeds the aggravated range of the guidelines and there is an allegation of
excessiveness, this Court must review the record to determine whether
there was an abuse of discretion.” Commonwealth v. Monahan, 860 A.2d
180, 182 (Pa. Super. 2004) (citations omitted). Upon review, we agree with
Appellant that the reasons for the trial court’s upward deviation were not
clearly stated on the record as required under section 9721(b) of the
Sentencing Code. Therefore, we are constrained to vacate the judgment of
sentence and remand for re-sentencing.
In his final issue, Appellant argues that the trial court erred in allowing
Sergeant Davis of the Philadelphia Police Department to testify at the
sentencing hearing about his personal knowledge of Appellant’s character,
Appellant’s reputation for intimidation in the community, and his previous
encounters with Appellant, who displayed threatening behavior. Appellant’s
Brief at 24-25. Specifically, Appellant argues that Sergeant Davis’s
testimony constituted inadmissible hearsay and was based on the officer’s
unsubstantiated recollections of his previous encounters. Id.- 16 -
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“Sentencing courts may consider evidence that might not be admitted
at trial.” Commonwealth v. Charles, 488 A.2d 1126, 1129 (Pa. Super.
1985). “Significantly, the admission of hearsay in sentencing proceedings,
especially those which do not involve a capital crime, is a common
occurrence. In fact, sentencing courts, as a matter of course, consider
hearsay in nearly every sentencing case since pre-sentence investigations
are routinely ordered and considered by the court, and a pre-sentence report
is the very definition of hearsay ...” Commonwealth v. Medley, 725 A.2d
1225, 1230 (Pa. Super. 1999). A sentencing judge “may appropriately
conduct an inquiry broad in scope, largely unlimited either as to the kind of
information he may consider, or the source from which it may come.
Nevertheless, the discretion of a sentencing judge is not unfettered; a
defendant has the right to minimal safeguards to ensure that the sentencing
court does not rely on factually erroneous information, and any sentence
predicated on such false assumptions is inimicable to the concept of due
process.” Commonwealth v. Schwartz, 418 A.2d 637, 640-641 (Pa.
Super. 1980).
Here, we find no abuse of discretion in the trial court’s decision to
permit Sergeant Davis’s testimony. Sergeant Davis testified to information
within his personal knowledge, and Appellant was permitted to cross-
examine the sergeant as to the basis for his opinions to reveal any
weaknesses and inconsistency in his testimony. To the extent that Appellant
argues that the trial court improperly relied on Sergeant Davis’ testimony in
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its imposition of sentence, we reiterate that the trial court failed to provide
adequate reasons on the record for its sentence, and therefore we cannot
evaluate whether the trial court relied solely on the sergeant’s testimony in
imposing an above-guideline range sentence, to the exclusion of other
sentencing factors, or otherwise improperly considered the testimony in its
imposition of sentence. However, in light of our decision to remand for re-
sentencing, we need not address such claim.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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