Com. v. Lucas, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM LUCAS
Appellant No. 2531 EDA 2015
Appeal from the Judgment of Sentence Dated April 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010798-2013
CP-51-CR-0011665-2013
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 07, 2017
Appellant, William Lucas, appeals from the judgment of sentence of 35
to 85 years’ incarceration under Docket No. CP-51-CR-0010798-2013 for
robbery, unlawful possession of a firearm, and possession of an instrument
1
of a crime and under Docket No. CP-51-CR-0011665-2013 for rape,
unlawful restraint, sexual assault, unlawful possession of a firearm, indecent
assault, robbery, unlawful sexual contact with a minor, possession of an
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3701(a)(1)(i), 6105(a)(1), and 907(a), respectively.
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instrument of a crime, and aggravated indecent assault. 2 After careful
review, we affirm.
Facts3 Relating to Charges at Docket No. 10798
On August 5, 2013, 4 at 3:00 A.M., Devin Ross, a 19-year old black
woman, was returning from a friend’s home via trolley. She exited at 62nd
Street and Elmwood Avenue in Philadelphia and noticed a brown-skinned
man wearing a gray hooded sweatshirt (“hoodie”) and dark-colored pants
cross the street with her to a bus stop. N.T., 1/6/15, at 37-39, 41, 60.
Upon seeing him repeatedly look up the street, she checked the bus
schedule on her cellular telephone and told him that the bus scheduled for
3:08 A.M. would arrive in eight minutes. The man—Appellant—did not
respond. Id. at 39. Because there were streetlights on both sides of the
street, Ms. Ross had a clear view of Appellant, who was standing
approximately eighteen inches away from her. Id.
____________________________________________
2
18 Pa.C.S. §§ 3121(a)(1), 2902(a)(1), 3124.1, 6105(a)(1), 3126(a)(2),
3701(a)(1)(i), 6318(a)(1), 907(a), and 3125, respectively.
3
In each case, we relate the facts in a light most favorable to the
Commonwealth, the verdict-winner below.
4
According to the Commonwealth, Appellant had been released from federal
custody just one week before the crimes in this case were committed;
however, the Commonwealth provides no citation for this timeframe. Both
parties agree that Appellant was on federal probation on August 5 and 6,
2013. Appellant’s Brief at 6 n.3, 25, 48; Commonwealth’s Brief at 43.
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As Ms. Ross attempted to put her headphones into her ears, Appellant
approached her, pulled out a firearm, pointed it at her abdomen, and told
her to give him her phone. N.T., 1/6/15, at 39, 62. When she screamed,
Appellant told her, “if [she] screamed again, that he was going to shoot
[her].” She gave him her phone. Id. at 39. Appellant then spun around,
put on the hood, began walking, looked back at her, and “turned the corner
onto Elmwood Avenue.” Id. at 39-40, 73.
Once Ms. Ross was certain that Appellant had left, she flagged down
an automobile and told the two male occupants, who she did not know, what
had happened. N.T., 1/6/15, at 40, 42-43, 65-66. Aside from hearing the
passenger referred to as “Tim,” she never learned the names, phone
numbers, or addresses of the vehicle’s occupants. Ms. Ross then entered
the vehicle, and they drove around until she spotted Appellant
approximately four blocks away, on Dewey Street. The driver stopped the
car and asked Appellant if he had Ms. Ross’s phone; Appellant answered,
“No.” Id. at 40. Appellant also did not reply when asked if he had a
firearm. Id. The driver then brought Ms. Ross to her sister’s home. Id.
The next day, Ms. Ross reported the robbery to the police and gave a
statement. Ex. C-3; N.T., 1/6/15, at 44, 48-49. In her statement, Ms. Ross
described the perpetrator as a black male with facial hair in his late 20s or
early 30s who wore a grey hoodie and dark pants. Ex. C-3 at 1.
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On August 9, 2013, Ms. Ross accompanied two detectives as they
drove around the neighborhood in an unmarked police vehicle in an attempt
to identify the perpetrator. N.T., 1/6/15, at 43-44, 198-99. As they turned
from 62nd Street onto Woodland Avenue — four blocks away from the scene
of the crime — she recognized Appellant on the street. The police turned
their vehicle around so that Ms. Ross could confirm her identification, and
she then did confirm it. The detectives then called for a marked police
vehicle, and Appellant was arrested. Ms. Ross gave a second statement
confirming her identification of Appellant. Id. at 44, 50-51.
Later that day, the detectives obtained a search warrant for
Appellant’s residence. Ex. C-20; N.T., 1/6/15, at 203-04. During the
search, police recovered clothes matching those described by Ms. Ross as
worn by the man who robbed her. Ex. C-5; N.T, 1/6/15, at 207. Police
photographed the clothing and showed the photographs to Ms. Ross, who
verified that they matched the clothes worn by the perpetrator. Id. at 52-
53, 209-10.
Facts Relating to Charges at Docket No. 11665
At 2:56 A.M. on August 6, 2013, a 17-year-old woman identified in the
record as S.J. boarded a bus at 58th Street and Cecil Street in Philadelphia.
N.T., 1/6/15, at 104-05, 117. The bus ride lasted about seven minutes.
Between 3:00 A.M. and 3:05 A.M., she exited the bus at 62nd Street and
Elmwood Avenue, intending to transfer to a trolley. Id. at 105, 117. After
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waiting for about ten minutes, she decided that a trolley would not be
arriving soon and started walking up Elmwood Avenue. Id. at 106, 118.
When she reached 64th Street, she was grabbed from behind and turned
around by Appellant, who aimed a firearm at her face and demanded that
she give her cell phone to him. Id. at 107-08, 110, 112, 118, 135-36.
Because they were under a street lamp, she could see Appellant’s face
clearly. Id. at 111.
After taking her phone, Appellant forced S.J. into a driveway across
the street and raped her. N.T., 1/6/15, at 108-09, 115-16, 118. Appellant
left the scene threatening that he would shoot S.J. if she followed him. Id.
at 109. S.J. saw Appellant’s face multiple times during the assault. Id. at
113-14, 116, 118-19.
After Appellant left, S.J. walked home and contacted the police. N.T.,
1/6/15, at 109, 118-19, 141. S.J. gave a formal statement to Detective
Martinka. Ex. C-11; N.T., 1/6/15, at 122, 141, 170-71. In the statement,
S.J. described her attacker as a black male “in his late 20s to early 30s” with
“dark skin, nappy hair, nappy [and] long sideburns,” wearing a “white shirt
under a gray hoodie [and] blue jeans.” Ex. C-11 at 2.
S.J. then went to a hospital for a rape examination. N.T., 1/6/15, at
122, 124, 172-73. DNA testing revealed the presence of a male Y-
chromosome; although the samples tested did not identity Appellant
individually, tests on the Y-chromosome matched “William Lucas and his
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paternity related male relatives” — that is, the Y-chromosome originated
from Appellant or his male paternal relatives. N.T., 1/7/15, at 120.
On August 9, 2013, Detective Martinka showed S.J. a photographic
array in which Appellant did not appear. S.J. did not identify anyone in that
array. N.T., 1/6/15, at 129, 181. She said, “[N]o, none of these people are
him. I know for sure that none of these people are him.” Id. at 130.
Later that day, other detectives informed Detective Martinka that a
male “matching the description” given by S.J. “had been arrested for a
similar crime.” N.T., 1/6/15, at 181-82. Detective Martinka then created a
second photograph array that contained Appellant’s photograph. Ex. C-14;
N.T., 1/6/15, at 181.
On August 10, 2013, Detective Martinka showed S.J. the second
photographic array. Ex. C-14; N.T., 1/6/15, at 128-30, 182. He did not tell
her whether he believed that the perpetrator’s photograph was in this array.
Id. at 132. As S.J. was reviewing the mugshots, she focused on one specific
photograph — Appellant’s; she began saying, “Is it him? I’m not sure if it’s
him. Is it him?” Id. at 131, 142. Although S.J. was (as she later described
it) “thinking out loud,” she did not point to or otherwise specify any
particular photograph to Detective Martinka at this time; the detective only
“knew [she] was looking at the page” and “never knew which specific person
[on that page she] was talking about.” Id. at 144. She merely had “a
puzzled face” and “was indecisive about it.” Id. at 142, 145. Nobody told
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S.J. or suggested to her who in that photographic array she should identify.
Id. at 149.
S.J. then said, “I’m not sure because I don’t want to pick the wrong
person.” N.T., 1/6/15, at 145. Detective Martinka asked her if she thought
“that there was someone on the page that could have been him,” and she
answered affirmatively. Id. The detective then told her that the person
might look different in the photograph from how he looks today — for
example, the photographs might be a few years old, or the person could
have a different haircut or facial hair. Id. at 131. Detective Martinka did
not direct S.J. towards any particular photograph. Id. S.J. looked again at
Appellant’s photograph and said, “That’s him. I know for sure that that is
him.” Id. at 131, 145. S.J. circled Appellant’s photograph and signed the
array. Id. at 132, 145. During her trial testimony, when asked why she
identified Appellant in that photographic array, S.J. said, “Because I knew
that that was the man that . . . sexually assault[ed] me and rob[bed] me.”
Id. at 149.
After making her identification, S.J. overheard Detective Martinka
saying “O.K.” to another police officer and gave him a quizzical look. N.T.,
1/6/15, at 132. Detective Martinka then explained to S.J. that Appellant had
been arrested the day after her assault, and police had found the hoodie in
his possession. Id. at 132, 145. S.J. did not know about Appellant’s arrest
until after she had made the identification. Id. Detective Martinka told S.J.
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after her identification that, “in [his] opinion, it was the right guy and he was
arrested for assault on another woman in the area.” Id. at 191-92.
Appellant then was charged for rape and other crimes identified above.
At the preliminary hearing, S.J. again identified Appellant. N.T., 1/6/15,
132-33.
Consolidation of the Charges and Trial
On November 13, 2013, the Commonwealth moved to consolidate
both cases. At the November 13, 2013, hearing on that motion, Appellant
argued that these crimes involved two separate incidents, that the evidence
relating to each incident was not admissible with respect to the other
incident, and that consolidation would be unduly prejudicial. N.T., 11/13/13,
at 3.
At Appellant’s request, the court granted a continuance, and a second
hearing on the motion to consolidate was held on December 4, 2013. As the
trial court later explained, it then decided to consolidate the two cases:
At the hearing held on December 4, 2013, to consider the
Commonwealth’s motion, the Commonwealth established to the
Court’s satisfaction that there was a "high correlation in the
details" of the evidence linking the two crimes and that each
crime was easily distinguishable from the other. The
Commonwealth’s investigation revealed that the first crime
occurred at approximately 3:00 a.m., when [Appellant] robbed a
young 19 year old black female, who was alone at a bus stop in
the city of Philadelphia, of her cell phone at gunpoint. This
victim later identified [Appellant] as her assailant. The second
crime, which occurred 24 hours later, again at approximately
3:00 a.m., involved a young 17 year old black female who was
also alone at the same bus stop. In addition to robbing this
victim of her cell phone at gun point, [Appellant] also attempted
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to rape her. (N.T. 12/4/13 pgs. 5, 6) It was also revealed that
both victims described their assailants as wearing the same type
of clothing. (N.T. 12/4/13 pgs. 9, 10)
Trial Ct. Op., 2/4/16, at 11-12.
Appellant argued that because there was a break in time, the incidents
should be considered to be separate. N.T., 12/4/13, at 8. The trial court
asked, “Both of these incidents, the victim has identified the defendant?”
Id. at 10. The Commonwealth answered affirmatively. Id. The trial court
granted the Commonwealth’s motion for consolidation after asking the
rhetorical question, “I mean, how many guys are running around in [the]
same time period robbing young women at the same bus stop?” N.T.,
12/4/13, at 10. The court explained, “After careful consideration of the
Commonwealth’s motion and argument, the Court was satisfied and found
the two crimes were sufficiently related to justify their [consolidation] for the
purposes of trial.” Trial Ct. Op., 2/4/16, at 12 (citing N.T., 12/4/13, at 10).5
Appellant’s consolidated jury trial began on January 6, 2015, on all
counts except for the two firearms charges. Detective Martinka testified on
the first day. During cross-examination, defense counsel attempted to ask
the detective about the police department’s current policies, but the trial
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5
The trial court later permitted Appellant to be tried separately for the
firearms violations charged in each case. N.T., 1/5/15, at 13-14. As
discussed below, he was convicted in a separate non-jury proceeding on
those charges.
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court sustained the Commonwealth’s objection. N.T., 1/6/15, at 190. 6
Appellant’s counsel then tried to elicit whether photographic array
identifications should be double-blind — that is, whether the person showing
a photographic array to a witness should have no knowledge of the suspect.
Id. The Commonwealth again objected, and the trial court sustained the
objection. Id. Appellant’s counsel next asked, “In your experience as an
officer, have you ever had one of your fellow detectives show photo arrays
to a complainant because you didn’t want to influence them?” Id. The
Commonwealth once more objected, and its objection was sustained. Id.
At no time did Appellant’s trial counsel respond to the trial court’s rulings
sustaining the Commonwealth’s objections by requesting a sidebar, making
an offer of proof, or otherwise stating the bases for his questions on the
record. See id. at 189-92.
During cross-examination, Detective Martinka testified that everything
he discussed with S.J. was memorialized in her statement and that he
sometimes tells a witness who has picked out a photograph from a
photographic array that the witness has chosen the “right guy.” N.T.,
1/6/15, at 189-91. In response to the trial court’s question, Detective
Martinka testified that he told S.J. that “the male who assaulted you may or
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6
Appellant’s trial counsel asserts in his brief that he intended to ask
Detective Martinka specifically about police identification policies.
Appellant’s Brief at 4, 45.
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may not be in the photo array,” and that, after her identification, “in [his]
opinion, it was the right guy and he was arrested for assault on another
woman in the area.” Id. at 191-92.
The morning after Detective Martinka’s testimony, Appellant moved for
a mistrial, maintaining that the police failed to disclose the circumstances of
S.J.’s identification prior to trial. N.T., 1/7/15, at 13-16. Appellant insisted
that the police had misrepresented his appearance in the photographic array
and had tainted S.J.’s identification by telling her that she picked the right
person. Id. at 15-16. The trial court denied the motion, stating that “one
way or another, the jury can be instructed to, either, disregard the in-court
identification, or receive it with caution. . . .” Id. at 22.
After the parties rested, defense counsel again requested a mistrial,
arguing that regardless of the evidence presented during the pretrial hearing
on the motion for consolidation, the evidence presented at trial did not
justify the consolidation, as there was no “common plan, design and
scheme” because “[o]ne’s a robbery and one’s a sex case.” N.T., 1/8/15, at
5-6. The trial court denied the motion. Id.
The trial court charged the jury on the factors that it should consider
when evaluating Ms. Ross’s identification testimony:
In evaluating that testimony, in addition to the other instructions
I have already provided, you should consider the additional
following factors.
First, did the witness have a good opportunity to observe the
perpetrator of the offense? . . . Next, was there sufficient
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lighting for her to make her observations? Was she close
enough to the individual to note his facial and other physical
characteristics, as well as any clothing he was wearing? Has she
made any prior identification of the defendant at any other
proceeding? Was her identification positive, or was it qualified
by any hedging or inconsistencies?
During the course of this case, did the witness identify anyone
else, other than . . . the defendant as the perpetrator?
N.T., 1/8/15, at 84-85.
The trial court provided the following additional instruction about S.J.’s
identification of Appellant in the second photographic array:
There are some other considerations with regard to [S.J.’s]
testimony, and the reason is that the police treated her in a
different way. The detective showed her a photo array, she
picked out a photograph, and instead of simply saying, thank
you, I don’t remember the exact words, he’s the same guy we
locked up for this kind of thing yesterday, or good job, you got
the right guy, whatever the words were, they were intended to
tell her, nice job. Good identification. I agree with the guy you
picked out.
And that’s a problem. That’s a problem because, when you
come to the preliminary hearing and she’s asked to identify
somebody in court, you have to ask yourself, did she pick him
out at the preliminary hearing because she recognized him from
the robbery, rape/robbery, or was she doing it because the
detective had told her she did a nice job and she picked out the
right guy?
And the same with her trial testimony, and you’ve been aware of
that complication from the time the detective testified, because I
asked him about that.
That doesn’t mean you throw out his identification, but it does
mean that you have to look at what happened in the
courtrooms, the preliminary hearing courtroom, the trial
courtroom, and decide whether you’re going to count that as a
good ID.
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And if you don’t, if you throw out those IDs, then you’re left with
other evidence pointing at him, pointing at [Appellant], the
photo array and other things that we’ll talk about, as well as the
physical evidence. You had physical evidence, you have the
chemical evidence, the DNA stuff.
So in her testimony, [S.J.] has identified this defendant as the
person who committed the crimes against her. There is a
question of whether her identification is accurate. If you believe
that Detective Martinka’s comments prejudiced the in-court
identification of [S.J.], then you must consider, with caution,
[S.J.’s] testimony identifying the defendant as the person who
committed the crime when she made those identifications at trial
and at the preliminary hearing.
If, however, you do not believe that this factor prejudiced the in-
court identification of [S.J.], then you need not receive the
testimony with caution and you may treat it like any other
testimony.
N.T., 1/8/15, at 86-88. The trial court emphasized that the jury had to
consider each charge individually. Id. at 89-90.
On January 9, 2015, Appellant was found guilty of all charges
submitted to the jury. After the jury’s verdict was entered, Appellant waived
his right to a jury trial on the remaining firearms counts, agreed instead to
submit these charges to the court for determination, and was found guilty on
the firearms charges. N.T., 1/9/15, at 26-27, 31.
Appellant’s Sentencing
In preparation for sentencing, a pre-sentence investigation (“PSI”),
mental health evaluation, and sexually violent predator assessment were
ordered. N.T., 1/9/15, at 31. The PSI was prepared on April 10, 2015, and
admitted as the Court’s Exhibit “A” (“the 2015 PSI”). In addition to this
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2015 PSI, the trial court also reviewed a PSI dated March 10, 2004, which
was prepared in connection with Appellant’s prior convictions on various
assault, theft, and weapons charges; that 2004 PSI was admitted as the
Court’s Exhibit “B” (“the 2004 PSI”).
At his sentencing hearing on April 16, 2015, the trial court determined
that Appellant did not qualify as a sexually violent predator. N.T., 4/16/15,
at 15. During sentencing, the Commonwealth stated that Appellant’s record
began when he was 14 years old and continued with the following findings of
delinquency and convictions: violation of the Uniform Firearms Act 7 in 1999,
when Appellant was 16 years old; simple assault, a misdemeanor, in 2001;
possession with intent to deliver (“PWID”) at age 20 in 2002; possession of
an instrument of crime, simple assault, conspiracy, and terroristic threats in
2003; and an additional PWID in 2006. Id. at 9-10, 16. After aging out of
the juvenile system, Appellant has been incarcerated multiple times, has
been convicted eight separate times, and has had three probation violation
hearings. Id. at 16-17. The Commonwealth asserted that Appellant has
never been able to successfully complete any period of community
supervision without violating again. Id.
At the conclusion of the sentencing hearing, the trial court stated:
[The court has] sentenced [other] people to hundreds of years,
and said on the record [it is] doing this just to make sure, in the
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7
18 Pa.C.S. §§ 6101-6127.
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case there are medical advances, [those defendants] never get[]
out. [Nevertheless, the court does not] think [Appellant] has
demonstrated the level of depravity that requires [it] to impose
a sentence like that, that he will never get out.
Id. at 25; accord Trial Ct. Op., 2/4/16, at 25. The trial court added that it
had listened to the arguments of counsel, read the PSI reports, and
reviewed the sentencing guidelines. N.T., 4/16/15, at 26.
The trial court then imposed sentence. N.T., 4/16/15, at 26-27. At
Docket No. 10798, Appellant was sentenced to incarceration for 8-20 years
for robbery and 2-5 years for unlawful possession of a firearm, to be served
consecutively. At Docket No. 11665, the court sentenced Appellant to
incarceration for 10-20 years for rape, 2-5 years for unlawful restraint, 2-5
years for unlawful possession of a firearm, 8-20 years for robbery, 1-5 years
for unlawful contact with a minor, and 2-5 years for aggravated indecent
assault, to be served consecutively to each other and to the sentence at
Docket No. 10798. Appellant received no further penalty on the remaining
counts. His aggregate sentence is 35-85 years’ incarceration.
On April 20, 2015, Appellant filed a timely Motion for Reconsideration
of Sentence, in which he argued that the sentence imposed by the trial court
was excessive, grossly disproportionate to his crimes, and contrary to the
fundamental norms which underlie the sentencing process. He continued
that the trial court failed to engage in individualized sentencing by not taking
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into account Appellant’s age, 8 background, and character. He added that
the trial court violated 42 Pa.C.S. § 9721(b), which provides —
the court shall follow the general principle that the 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.
At the conclusion of a video hearing held on August 3, 2015, the trial court
set forth additional reasons for Appellant’s original sentence and denied
Appellant’s motion. N.T., 8/3/15, 8-9.
Appellant timely filed this appeal on August 17, 2015. The trial court
filed a Rule 1925(a) opinion on February 4, 2016.9
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8
Appellant was 32 years old as of the hearing on the motion for
reconsideration of sentence. N.T., 8/3/15, at 3. As of that date, he had
already been incarcerated for almost two full years. Id. Thus, he would be
65 years old if he were released from incarceration after his imposed
minimum sentence of 35 years. Id. Additionally, Appellant alleged that his
sentence for violating his federal probation was deferred pending the
outcome of this appeal. See Appellant’s Brief at 6 n.3.
9
Appellant filed a Rule 1925(b) statement on September 21, 2015, but also
requested an extension of time to file a supplemental statement once the
complete notes of testimony were transcribed. He filed a supplemental
statement on January 12, 2016, but the trial court’s opinion erroneously
stated that no supplemental statement had been filed. See Trial Ct. Op.,
2/4/16, at 3. Nevertheless, we conclude that this error was harmless
because the trial court’s opinion addressed all of the issues raised in the
supplemental statement.
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Issues Raised on Appeal
Appellant raises the following issues on appeal:
A. Did the lower court err and abuse its discretion in ordering
a joint trial in the two instant matters, and later denying
[A]ppellant’s request for a mistrial, where evidence of one
offense would not have been admissible in a trial on the other,
where the two offenses were not part of a common plan, scheme
or design, were not sufficiently signature to establish a modus
operandi, and the joinder unduly prejudiced [A]ppellant?
B. Did the lower court err in denying a mistrial because the
Commonwealth failed to disclose mandatory and exculpatory
evidence that Police Detectives misrepresented facts which
induced a positive identification of the [A]ppellant in a photo
array and then reinforced that tainted identification by telling the
complainant she had picked the “right guy” in violation of Brady
v. Maryland, 373 U.S. 83 (1963),[ 10 ] all in violation of the
fundamental due process right to a fair trial under the state and
federal constitutions?
C. Did the lower court err in barring defense counsel from
questioning Detective Martinka regarding police identification
policy, procedure and best practices, thereby denying
[A]ppellant a full and fair opportunity to cross-examine
witnesses, to present a defense and to enjoy due process of law,
as the issue is relevant and probative of the validity, reliability,
and accuracy of both the in court and out of court
identifications?
D. Did the lower court abuse its discretion and violate the
Sentencing Code when it sentenced appellant to an aggregate
sentence of 35 to 8[5] years in state prison, where that sentence
is manifestly excessive, clearly unreasonable, far surpasses what
is necessary to protect the public, and failed to account for
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10
Brady held that a prosecution’s withholding of information or evidence
that is favorable to a criminal defendant’s case violates the defendant’s due-
process rights and that the prosecution has a duty to disclose such
information or evidence. 373 U.S. at 86-89.
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[A]ppellant’s rehabilitative needs, and where the lower court
failed to state its reasons for its sentence on the record?
Appellant’s Brief at 4-5 (suggested answers omitted).
Challenge to Consolidation
We begin by addressing Appellant’s challenge to consolidation of all
charges (other than the firearms charges) that were docketed at Nos. 10798
and 11665. See Appellant’s Brief at 4. The consolidation of separate
indictments or informations is addressed to the sound discretion of the trial
court and should be reversed only for a manifest abuse of discretion or
prejudice and clear injustice to an appellant. Commonwealth v. Lark, 543
A.2d 491, 496 (Pa. 1988).
Consolidation is governed by Rule 582(A)(1)(a) of the Rules of
Criminal Procedure:
Offenses charged in separate indictments or informations may
be tried together if the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable of
separation by the jury so that there is no danger of confusion
The admissibility issue is governed by Rule 404(b) of the Pennsylvania Rules
of Evidence:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person’s
character in order to show that on a particular
occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be
admissible for another purpose, such as proving
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motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident. In a criminal case this evidence is
admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.
Pa. R. Evid. 404(b)(1)-(2).
In Commonwealth v. Newman, 598 A.2d 275 (Pa. 1991), the
Supreme Court explained:
[Informations] may be consolidated where the separate offenses
show the unusual or distinctive modus operandi of the
defendant. In arriving at this standard, [the Supreme Court of
Pennsylvania] weighed the possibility of prejudice to the
defendant and/or the injustice caused by the consolidation
against the consideration of judicial economy. In seeking
consolidation of separate indictments, the Commonwealth is
required to show more than that the crimes are of the same
class. Rather, it must be shown that a high correlation in the
details of the crimes exists such that proof that the defendant
committed one makes it very unlikely that anyone else but the
defendant committed the others. . . .
Accordingly, evidence of other crimes may be introduced for the
limited purposes of showing (1) motive; (2) intent; (3) absence
of mistake or accident; (4) a common scheme, plan or design
embracing commission of two or more crimes so related to each
other that proof of one tends to prove the others; or (5) to
establish the identity of the person charged with the commission
of the crime on trial.
598 A.2d at 278 (citations omitted). “As with any evidentiary ruling, the
trial court should balance the relevancy and evidentiary need for the
evidence of distinct crimes against the potential for undue prejudice.”
Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996). Any potential
prejudice resulting from consolidation can be cured with proper jury
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instructions. Commonwealth v. Johnson, 211 A.2d 100 (Pa. Super.
1965).
“To establish similarity [in determining whether evidence of crimes,
wrongs, or other acts is admissible], several factors to be considered are the
elapsed time between the crimes, the geographical proximity of the crime
scenes, and the manner in which the crimes were committed.”
Commonwealth v. Rush, 646 A.2d 557, 561 (Pa. 1994). For example,
Rush involved two separate criminal incidents regarding an intruder who
gained non-forcible entry by ringing a doorbell at the residence of a victim
who had only recently been introduced to the defendant. The victims — who
were both young black females — had their underclothing or nightclothes
pulled from them, were stabbed with a knife taken from their own
apartments that was later wiped clean and left at the scene, and were
attacked while alone in their third floor bedroom in apartment buildings
where the defendant resided on the first floor. Id. The Supreme Court of
Pennsylvania found that there were “sufficient similarities to warrant the
conclusion that one individual committed both crimes.” Id.11
____________________________________________
11
Rush was decided before adoption of the Rules of Evidence, but we have
cited it in interpreting Rule 404(b). See, e.g., Commonwealth v. Miles,
846 A.2d 132, 136 (Pa. Super. 2004), appeal dismissed as improvidently
granted, 871 A.2d 1248 (Pa. 2005); Commonwealth v. O’Brien, 836 A.2d
966, 971 (Pa. Super. 2003), appeal denied, 845 A.2d 817 (Pa. 2004). We
may cite cases predating the enactment of the Pennsylvania Rules of
Evidence to the extent they are in accord with the Rules. Commonwealth
(Footnote Continued Next Page)
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Here, the evidence permitted the trial court to find “that a high
correlation in the details of the crimes exists such that proof that the
defendant committed one makes it very unlikely that anyone else but the
defendant committed the others.” Newman, 598 A.2d at 278. At the
hearing on the motion for consolidation, the Commonwealth presented
evidence linking the crimes against Ms. Ross and those against S.J.: the
crimes occurred around the same time (around 3 A.M.) at the same location
(at 62nd Street and Elmwood Avenue in Philadelphia), and the victims were
both young black women who were alone and were robbed of their cell
phones at gunpoint. N.T., 12/4/13, at 5-6. Both victims described their
assailant as wearing the same type of clothing. Id. at 9-10. As in Rush,
646 A.2d at 561, these crimes involved isolated victims who were similar,
were perpetrated by an assailant wearing similar attire, occurred in
comparable locations, involved the use of similar weapons, and resulted in
the taking of the same kinds of property.
We are satisfied that in reaching its conclusion to consolidate these
criminal informations, the trial court “balance[d] the relevancy and
evidentiary need for the evidence of distinct crimes against the potential for
_______________________
(Footnote Continued)
v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2000). Although Rush
dealt with the admissibility of a prior criminal conviction involving similar
facts, the test for similarity is the same in a consolidation context. See
generally Newman, 598 A.2d at 278 (affirming consolidation of the
criminal informations for two rapes because the facts for each rape were
similar).
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undue prejudice.” Gordon, 673 A.2d at 870. Because one crime escalated
from a property crime to a sexual assault and the crimes involved two
different victims on two sequential nights, these two incidents were “capable
of separation by the jury so that there is no danger of confusion.”
Pa.R.Crim.P. 582(A)(1)(a).
In order to further ensure that the jury would separate these criminal
incidents and not confuse them, the trial court provided proper and sufficient
jury instructions:
[Y]ou cannot find the defendant guilty unless you are satisfied
beyond a reasonable doubt, by all of the evidence, direct and/or
circumstantial, not only that the crime was committed, but that
the defendant is the person who committed it. . . . He could be
guilty of all, he could be guilty of some, not guilty of others.
Just because you’re convinced he committed crimes on one
night, doesn’t mean, necessarily, he committed crimes on
another night. That’s all up to you to decide. . . . You’ve heard
evidence for both complainants against this defendant, from
Devin Ross and [S.J.]. When rendering your verdict, you are to
consider each case individually as I was explaining with the
verdict sheet. He could be guilty of one, not guilty of the other,
guilty of both, not guilty of both.
N.T., 1/8/15, at 88-90. Hence, pursuant to Johnson, 211 A.2d at 103,
these instructions further ameliorated any concerns that the jury might fail
to differentiate the two incidents because they informed the jury that they
should consider the crimes individually or separately and must find guilt
beyond a reasonable doubt in each. Before completing its instructions, the
trial court asked counsel whether they had “anything additional,” and
counsel responded in the negative. N.T., 1/8/15, at 107. The jury is
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presumed to have followed the instructions it was given. See
Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). Thus, the trial
court did not abuse its discretion or create a clear injustice to Appellant by
consolidating the two criminal informations. See Lark, 543 A.2d at 496.
Appellant contends that even if there was sufficient evidence to
consolidate the cases prior to trial, the evidence presented at trial
demonstrated that there was an insufficient basis to support the
consolidation. Appellant’s Brief at 4, 35-37. Appellant used this argument
as the basis for his second motion for a mistrial, id. at 17; N.T., 1/8/15, at
5-6, and he now claims that the court erred in denying that motion.
A motion for a mistrial is controlled by Pa.R.Crim.P. 605(B): “When an
event prejudicial to the defendant occurs during trial only the defendant may
move for a mistrial; the motion shall be made when the event is disclosed.
Otherwise, the trial judge may declare a mistrial only for reasons of manifest
necessity.” Our standard of review for a challenge to the denial of a motion
for mistrial is well settled:
A motion for a mistrial is within the discretion of the trial court.
[A] mistrial [upon motion by one of the parties] is required only
when an incident is of such a nature that its unavoidable effect is
to deprive the appellant of a fair and impartial trial. It is within
the trial court’s discretion to determine whether a defendant was
prejudiced by the incident that is the basis of a motion for a
mistrial. On appeal, our standard of review is whether the trial
court abused that discretion.
An abuse of discretion is more than an error of judgment. On
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
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exercised by the trial court was manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will. . . .
The inquiry into whether prejudice has accrued is necessarily a
fact specific one.
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). “A
mistrial is an extreme remedy ... [that] ... must be granted only when an
incident is of such a nature that its unavoidable effect is to deprive
defendant of a fair trial.” Commonwealth v. Szakal, 50 A.3d 210, 218
(Pa. Super. 2012).
We disagree with Appellant that “elements of common plan, design
and scheme ha[d] not been made out after the facts” were presented during
trial. N.T., 1/8/15, at 6-7. The evidence at trial established robberies at
gunpoint of young black females at the same location and time of day 24
hours apart by a black male with facial hair or sideburns in his late 20s or
early 30s wearing similar clothing. Exs. C-3 at 1, C-11 at 2. The manner in
which the crimes commenced was substantially identical. See Rush, 646
A.2d at 561; Newman, 598 A.2d at 278 (informations may be consolidated
where the separate offenses show the unusual or distinctive modus operandi
of the defendant). Accordingly, contrary to Appellant’s position, the fact that
the second robbery worsened into a sexual assault does not undermine all
these other similarities. We discern no abuse of discretion in the trial court’s
refusal to grant a mistrial.
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Challenge to Photographic Array
Appellant claims that “the lower court erred in denying a mistrial when
the Commonwealth failed to disclose mandatory and exculpatory evidence
that the police tainted S.J.’s in court and out of court identification in
violation of Brady v. Maryland, 373 U.S. 83 (1963).” Appellant’s Brief at
37 (unnecessary capitalization omitted). This alleged exculpatory evidence
was that the police had “tainted” S.J.’s identification of Appellant from the
photographic array by “misrepresent[ing]” Appellant’s appearance in his
photograph, when “Detective Martinka and his partner told S.J. that
[Appellant’s] photograph might not look like the person she saw because it
might be old.” Id. at 17, 37 (citing N.T., 1/7/15, at 14-16). Counsel
allegedly did not learn of the circumstances of S.J.’s identification of
Appellant from the photographic array until Detective Martinka’s trial
testimony. Id. Appellant asserts that had the Commonwealth properly
disclosed the “suggestive circumstances” of S.J.’s identification, the outcome
of the trial would have been different, because (1) he would have filed a
motion to suppress and succeeded in suppressing S.J.’s out-of-court and in-
court identifications; (2) the cases thereby would not have been
consolidated, as the trial court would not have relied upon the double
identifications when consolidating the trials; and (3) the defense would have
consulted and called an expert witness regarding general eyewitness
identifications. Appellant’s Brief at 17, 37, 39, 44; N.T., 1/7/15, at 14-16.
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Appellant argues that no instruction could adequately cure the prejudice that
resulted from the trial court’s alleged error. Appellant’s Brief at 17, 37
(citing N.T., 1/7/15, at 14-16).
“To establish a Brady violation, [A]ppellant must demonstrate: (1)
the prosecution concealed evidence; (2) the evidence was either exculpatory
or impeachment evidence favorable to him; and (3) he was prejudiced.”
Commonwealth v. Treiber, 121 A.3d 435, 460–61 (Pa. 2015). Appellant
failed to meet these requirements.
First, Appellant failed to demonstrate that “the prosecution concealed
evidence.” See Treiber, 121 A.3d at 460. Appellant makes the bald claim
that “the Commonwealth . . . hid exculpatory evidence in violation of
Brady,” but presents no proof to support this contention. See Appellant’s
Brief at 24. There is nothing in the record to suggest that the
Commonwealth had prior knowledge of and concealed the detective’s alleged
“misrepresent[ion]” of Appellant’s appearance in his photograph. See id. at
17, 37 (citing N.T., 1/7/15, at 14-16). Accordingly, Appellant did not
establish the first prong of a Brady violation.
Second, Appellant also failed to show that the allegedly concealed
evidence was exculpatory. See Treiber, 121 A.3d at 461. “Exculpatory
evidence is that which extrinsically tends to establish defendant’s innocence
of the crimes charged.” Commonwealth v. Lambert, 765 A.2d 306, 325
n.15 (Pa. Super. 2000); see also Commonwealth v. Redmond, 577 A.2d
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547, 552 (Pa. Super. 1990) (citing Giglio v. U.S., 405 U.S. 150 (1972))
(exculpatory evidence includes material that goes to the heart of the
defendant’s guilt or innocence as well as that which might well alter the
jury’s judgment of the credibility of a crucial prosecution witness);
Commonwealth v. Watson, 512 A.2d 1261, 1266 (Pa. Super. 1986)
(same as Lambert). “Brady does not require the disclosure of information
that is not exculpatory but might merely form the groundwork for possible
arguments or defenses.” Commonwealth v. Roney, 79 A.3d 595, 608 (Pa.
2013) (citations and internal quotations omitted).
Here, Appellant claims only that he could have made additional
arguments if he had known about Detective Martinka’s comments to S.J. —
that is, that he could have argued for suppression of S.J.’s identification,
that he would have had an additional argument to make against the
identification, and that he could have consulted and called an expert witness
to talk about the identification. See Appellant’s Brief at 39, 44. However, at
no point does he set forth why the allegedly “suggestive circumstances” of
Detective Martinka’s statements to S.J. should be considered exculpatory –
he does not expound that these circumstances establish his innocence of the
crimes charged. See Lambert, 765 A.2d at 325 n.15; Watson, 512 A.2d at
1266. Appellant points to no evidence which approaches the definition of
exculpatory material; he merely declares: “There should be little doubt that
the first two prongs of a Brady violation occurred.” Appellant’s Brief at 38.
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He never asserts his innocence. See id. at 37-45. Without an argument
demonstrating that these “suggestive circumstances” would have been
exculpatory, Appellant has failed to demonstrate fulfillment of the second
element of a Brady violation. See Treiber, 121 A.3d at 461. Accordingly,
Appellant’s Brady challenge fails.12
Although Appellant characterizes his argument as a Brady challenge,
his brief reveals that he is making a broader claim that S.J.’s identification
evidence should have been suppressed on due process grounds. See
Appellant’s Brief at 40-42. Because this argument is not clearly set forth in
the statement of issues in Appellant’s brief, it appears to have been waived.
See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby”). In any
event, we conclude that this argument too is without merit.
We have held —
Whether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined
from the totality of the circumstances. Suggestiveness in
the identification process is a factor to be considered in
determining the admissibility of such evidence, but
suggestiveness alone does not warrant exclusion. Identification
evidence will not be suppressed unless the facts demonstrate
that the identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.
____________________________________________
12
For this reason, we need not address the third Brady factor, i.e., whether
Appellant was prejudiced. See Treiber, 121 A.3d at 461.
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In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016) (emphasis added); see
also Commonwealth v. Jaynes, 135 A.3d 606, 610 (Pa. Super.) (“A
pretrial identification will not be suppressed as violative of due process rights
unless the facts demonstrate that the identification procedure was so
infected by suggestiveness as to give rise to a substantial likelihood of
irreparable misidentification. . . . [W]here a defendant does not show that
improper police conduct resulted in a suggestive identification, suppression
is not warranted” (emphasis omitted)), appeal denied, 145 A.3d 724 (Pa.
2016). “Due process does not require that every pretrial identification of
witnesses must be conducted under laboratory conditions of an approved
lineup.” Commonwealth v. Kearney, 92 A.3d 51, 67 (Pa. Super.), appeal
denied, 101 A.3d 102 (Pa. 2014).
Here, Appellant contends that pretrial disclosure of Detective
Martinka’s remarks would have resulted in the suppression of S.J.’s
identification in its entirety. Appellant’s Brief at 17, 37-39; N.T., 1/7/15, at
14-16. However, the detective’s comments about the potential age of the
photographs did not suggest which of the pictured individuals was
suspected of being the perpetrator, and, at that time, he did not know which
particular photograph S.J. was considering. See N.T., 1/6/15, at 131, 142,
144-45. S.J. confirmed that no one suggested to her who in the
photographic array she should identify. Id. at 149. When asked why she
picked out Appellant’s photograph in the array, she unambiguously
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answered, “Because I knew that that was the man that . . . sexually
assault[ed] me and rob[bed] me.” Id. In addition, Detective Martinka’s
statement after S.J.’s identification obviously could not have influenced her
prior choice of photographs. Id. at 132, 145. Based upon the totality of
these circumstances, there was no suggestiveness in the out-of-court
identification process. Therefore, neither of the detective’s statements
would have justified suppression of S.J.’s pretrial identification.13
In addition, the trial court gave a curative instruction that remedied
any prejudice that might have resulted from the way the identification took
place. Trial Ct. Op., 2/4/16, at 20 (citing N.T., 1/7/15, at 15-16, 20-22).
See N.T., 1/8/15, at 84-88. Under our precedents, the charge was
sufficient. See, e.g., Commonwealth v. Sanders, 42 A.3d 325, 332 (Pa.
Super. 2012) (instruction is necessary to inform the jury that “an eyewitness
identification should be viewed with caution when . . . the witness did not
have an opportunity to view the defendant clearly, equivocated on the
identification of the defendant, or has had difficulties identifying the
defendant on prior occasions”), appeal denied, 78 A.3d 1091 (Pa. 2013);
____________________________________________
13
Appellant argues that this case is analogous to Commonwealth v.
Wade, 867 A.2d 547 (Pa. Super. 2005). See Appellant’s Brief at 40-41. In
Wade, 867 A.2d at 553-54, two witnesses to a robbery disclosed during
their trial testimony that, shortly after the robbery, the police showed them
an identification card belonging to the defendant. We held that a mistrial
was warranted because this procedure was so suggestive that it irreparably
tainted any subsequent identification. Id. The facts of this case bear no
resemblance to those in Wade, and we find that decision inapposite here.
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Commonwealth v. Simmons, 647 A.2d 568, 569 (Pa. Super. 1994) (jury
instruction that identification testimony must be received with caution where
it is doubtful was warranted), appeal denied, 659 A.2d 987 (Pa. 1995).
The second claim raised by Appellant for our review therefore is
without merit.
Cross-Examination of Detective Martinka
The third issue raised by Appellant is that the trial court erred in
prohibiting his cross-examination about the proper police procedures and
policies regarding identifications by witnesses. See Appellant’s Brief at 4-5,
45-48. During trial, the court consistently sustained the Commonwealth’s
objections to these questions. When it did so, Appellant did not make an
offer of proof or otherwise note an exception to the ruling. N.T., 1/6/15, at
190. “A party may claim error in a ruling to . . . exclude evidence only . . .
if the . . . party informs the court of its substance by an offer of proof,
unless the substance was apparent from the context.” Pa. R. Evid.
103(a)(2). “An appellate court cannot determine whether the proffered
testimony was properly excluded without an offer of proof at trial.” Romeo
v. Manuel, 703 A.2d 530, 533 (Pa. Super. 1997). Because Appellant did
not properly preserve his exception to the trial court’s ruling, he cannot raise
this challenge for the first time on appeal to this Court. See Pa.R.A.P.
302(a); Commonwealth v. Shamsud-Din, 995 A.2d 1224, 1228 (Pa.
- 31 -
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Super. 2010). Thus, the third issue raised by Appellant for our review is
waived.14
Challenge to the Discretionary Aspects of Sentencing
Finally, Appellant challenges his aggregate sentence — consisting of
consecutive guideline sentences for each offense — because he says it is
“manifestly excessive, clearly unreasonable, far surpasses what is necessary
to protect the public, and failed to account for [A]ppellant’s rehabilitative
needs, and where the lower court failed to state its reasons for its sentence
on the record.” Appellant’s Brief at 5.
“When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
____________________________________________
14
Even if this challenge were not waived, however, we would affirm,
because the trial court’s ruling was not an abuse of its discretion.
Evidentiary rulings, including those concerning the permissible scope of
cross-examination, are committed to the discretion of the trial court and will
not be reversed absent an abuse of discretion. Commonwealth v.
Fletcher, 861 A.2d 898 (Pa. 2004). During cross-examination, Appellant
sought to elicit Detective Martinka’s opinion — either through direct inquiries
or by reference to past cases — on whether double-blind administration of
photographic arrays produces more reliable results and whether police
comments to an eyewitness influence the witness’s identification. N.T.,
1/6/15, at 190-91. But Detective Martinka was not qualified as an expert in
the field of eyewitness reliability, and expert testimony on factors affecting
eyewitness reliability, including the effect of police introductions to
eyewitnesses, must be given by expert witnesses only. See
Commonwealth v. Walker, 92 A.3d 766, 779-80, 788-91 (Pa. 2014)
(citing Pa. R. Evid. 702). Hence, the trial court did not abuse its discretion
in holding that Detective Martinka was not permitted to offer an opinion on
whether any given practice was more likely to yield accurate identifications.
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question as to the appropriateness of the sentence under the Sentencing
Code.” Commonwealth v. Glass, 50 A.3d 720, 726 (Pa. Super. 2012).15
Appellant included such a statement in a separate section of his brief under
Appellate Rule 2119(f). See Appellant’s Brief at 21-23. There, Appellant
stated that the trial court “was required to consider the sentencing criteria,
the character of the defendant, and the needs of the defendant in addition to
just his instant offense and criminal record,” and that “because [the trial
court] failed to do so, a substantial question has been raised.” Id. at 22
(citing Commonwealth v. Mathews, 486 A.2d 495 (Pa. Super. 1984)).
Appellant also relies on Commonwealth v. Mouzon, 812 A.2d 617(Pa. 2002) (plurality opinion), in asserting that the imposition of consecutive
sentences in this instance — that is, “the imposition of consecutive lengthy
state sentences on eight difference offenses stemming from only two
separate incidents” with “a minimum ten years longer and a maximum three
decades longer than even third strike offenses,” Appellant’s Brief at 23 —
results in a manifestly excessive sentence and presents a substantial
question for review. However, as we stated in Commonwealth v. Dodge,
77 A.3d 1263 (Pa. Super. 2013):
____________________________________________
15
It is also necessary for Appellant to have preserved the issue in the trial
court and to have filed a timely appeal. Commonwealth v. Colon, 102
A.3d 1033, 1042-43 (Pa. Super. 2014). Appellant’s appeal was timely filed,
and he preserved his challenge to the discretionary aspects of sentencing in
his post-sentence motion and in his Pa.R.A.P. 1925(b) statement.
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To make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application
of the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a
substantial question.
Id. at 1270 (emphasis in original).
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.
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015). “The
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis.” Glass, 50 A.3d at 727.
In the current action, Appellant does not make a bald claim of
excessiveness. He suggests that the trial court “failed to conduct an
individualized consideration as to [his] rehabilitative needs as the
Sentencing Code requires, focusing solely on the facts relating to the instant
case and his criminal record” and that “[t]he trial court’s sentence effectively
condemns [Appellant] to life in prison.” Appellant’s Brief at 22-23. In
addition, Appellant’s contention that the trial court failed to state adequate
reasons on the record for Appellant’s sentence qualifies as a substantial
question for our review. Commonwealth v. Flowers, 149 A.3d 867, 871
(Pa. Super. 2016). Appellant’s claims therefore raise a substantial question,
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and we therefore will consider the substantive merits of his sentencing
issues.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. 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.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation
omitted), appeal denied, 117 A.3d 297 (Pa. 2015).
We address Appellant’s challenges to his sentence in reverse order.
We first consider whether the trial court “failed to state its reasons for its
sentence on the record.” Appellant’s Brief at 5. Contrary to that claim, prior
to imposing sentence, the trial court recited that it did not believe that
Appellant had “demonstrated the level of depravity that requires [it] to
impose a sentence” of “hundreds of years.” N.T., 4/16/15, at 25; see also
Trial Ct. Op., 2/4/16, at 25. Nonetheless, the trial court added, “But the
crimes are serious and . . . [it] expect[s] to impose lengthy prison
sentences.” N.T., 4/16/15, at 25; see also Trial Ct. Op., 2/4/16, at 25.
The trial court furthermore noted for the record, “[It has] listened to
arguments of counsel, [it has] read the presentence reports and reviewed
the sentencing guidelines.” N.T., 4/16/15, at 26. When Appellant sought
reconsideration of his sentence, the court added:
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[Appellant] has spent his entire life committing crimes like this.
. . . [T]he likelihood of him committing another offense when he
gets out is just overwhelming. We would like to think that
people change, rehabilitated, improve over time, but he goes in,
serves his bit, as soon as he gets out, gets a gun and goes off
and starts robbing and raping. So, keeping him in jail until he’s
in his 60[s] is actually a pretty good idea. . . . It’s a sad thing to
say, an unpleasant thing to do, but that’s the appropriate
sentence. You get so many chances. And you really can’t take a
chance with someone who has this level of violence because he’s
asking [the trial court] to show mercy on him, [the trial court is]
trying to show mercy on his next victim. Because there’s going
to be a next victim, just a question of how long it takes before
he gets out. He’ll get out, in a matter of days, he’ll find a gun,
and he’ll be doing the same thing he did in this case. [The trial
court does not] think there’s much hope of anything else with
[Appellant].
So, [Appellant] said his piece, [the trial court] looked over the
notes of testimony [and] the pre-sentence report [and]
reconsidered the sentence, but the same sentence will stand.
N.T., 8/3/15, at 8-9.
“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence.” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa. Super. 2010). A “discourse on the court’s sentencing
philosophy, as it applies to the defendant before it, is not required.”
Commonwealth v. Hill, 629 A.2d 949, 953 (Pa. Super. 1993). The
reasons merely “must reflect the judge’s consideration of the sentencing
code, the circumstances of the offense and the character of the offender.”
Commonwealth v. Beasley, 570 A.2d 1336, 1338 (Pa. Super. 1990). The
trial court fulfilled this requirement.
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Moreover, the trial court rendered its sentence in light of two PSIs, and
it recited on the record that it considered both of them. N.T., 4/16/15, at
26; N.T., 8/3/15, at 9. As the Supreme Court stated in Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988):
Where pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself. In
order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed.
Thus, “[w]here the sentencing judge had the benefit of a pre-sentence
report, it will be presumed that he was aware of relevant information
regarding appellant’s character and weighed those considerations along with
the mitigating statutory factors.” Commonwealth v. Fullin, 892 A.2d 843,
849–850 (Pa. Super. 2006). We therefore conclude that the trial court
created a proper record and rendered his sentence fully informed by it.
We next consider whether the trial court “failed to account for
[A]ppellant’s rehabilitative needs.” Appellant’s Brief at 5. The 2015 PSI, at
2, reasoned: “Given the violent nature of [Appellant’s] offense, his history
of violent offenses, and his apparent inability to follow the rules [and]
regulations of probation, he presents a danger to both himself and others
and is not a good candidate for community service.” Because the trial court
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found Appellant unable to act appropriately when he was given the
opportunity to rehabilitate himself during earlier probation, and instead
found that Appellant resorted to recidivism, see N.T., 4/16/15, at 9-10, 16-
17, we conclude that the trial court did not fail to take Appellant’s potential
rehabilitation into consideration.
Appellant further contends that his sentence “far surpasses what is
necessary to protect the public.” Appellant’s Brief at 5. In addition to the
2015 PSI’s report that Appellant was a danger to others, the 2004 PSI, at 4,
also concluded that Appellant “is a dangerous individual against whom
society should be protected.” The trial court said that even though Appellant
had not demonstrated a “level of depravity” that required a sentence of
hundreds of years, he nevertheless had committed serious crimes that
required “lengthy prison sentences.” Trial Ct. Op. at 25 (quoting N.T.,
4/16/15, at 25). The court thus considered Appellant dangerous to society,
and it did not abuse its discretion by holding that Appellant presents a real
and present danger justifying a substantial period of incarceration.
Finally, Appellant’s claims that his sentence was “clearly unreasonable”
and “manifestly excessive” lack merit. Both counsel agreed that Appellant
was not eligible for a Recidivism Risk Reduction Incentive (“RRRI”) and that
his prior record score was capped at 5 as a result of multiple juvenile
adjudications and adult convictions. N.T, 4/16/15, at 9-10. Additionally,
they concurred that the offense gravity score on the instant charges of rape
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and unlawful contact were each rated 12. Id. The guidelines, when
employing the deadly weapon enhancement and if imposed consecutively for
each charge, recommended a total period of incarceration in the standard
range of 50-100 years, which was the aggregate sentence requested by the
Commonwealth. Id. at 12. The aggregate sentence imposed by the court is
35-85 years.
In Commonwealth v. Andrews, 720 A.2d 764, 766 (Pa. Super.
1998), the appellant was sentenced to 65-130 years’ imprisonment for
several robberies and related offenses. This Court held that this sentence
was not manifestly excessive where the appellant was a threat to the
community and had a significant prior criminal record. Id. at 768. Here,
Appellant was sentenced to less time than the defendant in Andrews for
robberies and a sexual assault. As in Andrews, Appellant has been
determined to be a threat to the community and has a significant prior
criminal record. Therefore, analogously to Andrews, 720 A.2d at 768,
Appellant’s sentence is not manifestly excessive.
There is no “volume discount” on crime. See Commonwealth v.
Belsar, 676 A.2d 632, 634 (Pa. 1996). Thus, in the present appeal,
consecutive standard range sentences are appropriate. Hence, the trial
court did not abuse its discretion in imposing Appellant’s sentence of 35 to
85 years’ incarceration.
Judgment of sentence affirmed.
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Judge Olson joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2017
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