Com. v. Long, E.

J-A08025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD LONG
Appellant No. 3255 EDA 2015
Appeal from the Judgment of Sentence September 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000845-2014
BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 06, 2017
Edward Long appeals his judgment of sentence, imposed in the Court
of Common Pleas of Philadelphia County, after he was convicted in a nonjury
trial of receipt of stolen property (“RSP”)1 and unauthorized use of an
automobile.2 Upon careful review, we affirm.
The trial court set forth the facts of this case as follows:
On October 6, 2013, at 5:00 a.m., Officer [Jason] Branyan’s tour
of duty took him to 4000 Paul Street in the City of Philadelphia.
Officer Branyan described the area as a “dead end” road. Officer
Branyan had previously been notified during roll-call that there
had been numerous complaints about the theft of Ford F-150s
and Ford F-250s in this vicinity. Specifically, he was told that
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3925(a).
2
18 Pa.C.S.A. § 3928(a).
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Walsh Construction had been the target of thefts of vehicles and
construction[-]related objects.
At 4000 Paul Street, Officer Branyan saw the Appellant, Edward
Long, walk away from a black Dodge Ram that was parked along
the sidewalk and had its interior lights illuminated. [Long], the
only person in the area, then walked across the street towards a
white Ford F-250 pick-up truck that belonged to Walsh
Construction. Officer Branyan noted that the Ford F-250 had its
engine running. When [Long] saw the patrol car he stopped and
abruptly walked back across the street away from the Ford F-
250. Officer Branyan and his partner, Officer [Michael]
Schaeffer, exited the patrol car and made contact with [Long].
Officer Schaeffer asked [Long] if he had any weapons on him
and [Long] responded that he had a knife. Fearing for his
safety, Officer Schaeffer removed the knife from [Long’s]
pocket[]. In the process of removing the knife, Officer Schaeffer
also removed a Walsh Construction gas card from [Long’s]
pocket. As Officer Schaeffer conducted this frisk, Officer
Branyan smelled alcohol on [Long’s] breath. Officer Branyan ran
the plates of the Ford F-250, and learned that it had been
reported stolen by Walsh Construction. He also noted that there
was an open beer can inside of the Ford F-250.
Believing that [Long] had stolen the Ford F-250, the [officers]
placed him under arrest. After [Long] was placed into custody,
Sergeant [George] Ackerman arrived on the scene for the
purpose of processing a stolen vehicle for latent fingerprints. He
failed to recover identifiable fingerprints on either the car or the
beer can.
Trial Court Opinion, 3/9/16, at 1-2 (citations to record omitted).
Prior to trial, Long moved to suppress all physical evidence recovered
as a result of his allegedly unlawful detention and search. Long also argued
a motion to dismiss pursuant to Pa.R.Crim.P. 600. The court denied both
motions, and Long proceeded to a nonjury trial before the Honorable Paul P.
Panepinto, after which he was convicted of the above offenses. Sentencing
was deferred until April 14, 2015, at which time the court sentenced Long to
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two to four years’ incarceration followed by three years of probation. The
court gave Long credit for six months of time served prior to trial.3
Long filed a motion to modify sentence on April 24, 2015, which the
court granted. After a second sentencing hearing, the court resentenced
Long to two to four years’ incarceration, followed by three years of
probation. This time, the court granted Long credit for all time served,
approximately two years.
This timely appeal follows, in which Long raises the following issues for
our review:
1. Did not the [trial] court err in denying [Long’s] motion to
dismiss under Pa.R.Crim.P. 600 where the Commonwealth
presented insufficient evidence to establish due diligence?
2. Did not the [trial] court err in denying [Long’s] motion to
suppress physical evidence where [Long] was subjected to
detention, frisk, and search without adequate suspicion of
criminal activity or facts leading the police to believe that [Long]
was armed and dangerous?
3. Was not the evidence insufficient as a matter of law to
sustain a conviction of [RSP] and unauthorized use of an
automobile, where [Long] was never seen within thirty feet of
the vehicle and, in any event, the vehicle was not damaged and
was being operated with keys?
4. Was not the verdict so contrary to the weight of the evidence
as to shock one’s sense of justice, therefore requiring a new
trial, where the gas card in [Long’s] pocket and the
circumstantial evidence that he also entered another vehicle on
the block suggests theft from a motor vehicle, rather than
possession and operation of that vehicle?
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3
At the time of sentencing, Long had been incarcerated since October 7,
2013.
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5. Did not the [trial] court violate due process and impose an
unreasonable sentence of two-to-four years, followed by three
years of probation, by relying upon improper factors, treating
mitigators as aggravators, and failing to consider [Long’s]
rehabilitative needs?
Brief of Appellant, at 5-6.
Long first alleges that the trial court erred in denying his Rule 600
motion. Long asserts that the Commonwealth failed to establish that it
exercised due diligence in bringing him to trial. Specifically, the
Commonwealth requested four continuances because its police witness,
Officer Branyan, was unable to attend due to illness. Long argues that the
evidence presented by the Commonwealth did not sufficiently establish that
Officer Branyan’s unspecified medical condition “rendered him unavailable
for court.” Brief of Appellant, at 30. Accordingly, Long claims that his
charges should have been dismissed.
We begin by noting our scope and standard of review.
In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
The proper scope of review is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of
the trial court. An appellate court must view the facts in the
light most favorable to the prevailing party.
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Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014)
(citation, brackets and ellipses omitted).
Pennsylvania Rule of Criminal Procedure 600, known as the “speedy
trial” rule, requires that a defendant be brought to trial within 365 days of
the date on which the criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
In computing time under Rule 600, “periods of delay at any stage of the
proceedings caused by the Commonwealth when the Commonwealth has
failed to exercise due diligence shall be included in the computation of the
time within which trial must commence. Any other periods of delay shall be
excluded from the computation.” Pa.R.Crim.P. 600(C)(1). In reviewing a
claim under Rule 600,
this Court is not permitted to ignore the dual purpose behind
Rule 600. Rule 600 serves two equally important functions: (1)
the protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of Rule
600 was not designed to insulate the criminally accused from
good faith prosecution delayed through no fault of the
Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule 600 must be construed in a
manner consistent with society’s right to punish and deter crime.
In considering these matters, courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous
law enforcement as well.
Thompson, 93 A.3d at 486–87 (citation, brackets and ellipses omitted).
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Here, Long argues that the Commonwealth “failed to make any
showing beyond a bare assertion” that Officer Branyan’s medical issues
prevented him from coming to court. Brief of Appellant, at 28. Long asserts
that, at the Rule 600 motion hearing, Officer Branyan testified only to having
a “medical condition” that he would classify as “serious.” Id. at 30, quoting
N.T. Motion Hearing, 1/8/15, at 27, 29. Long claims that the
Commonwealth should have offered testimony either from Officer Branyan’s
physician or that he was under doctor’s orders not to attend court. Long
also alleges that, because Officer Branyan knew his treatment schedule six
months in advance, the Commonwealth should have taken that schedule into
account when scheduling his court appearances. This argument is waived.
At the hearing on Long’s Rule 600 motion, Long’s counsel specifically
conceded that Officer Branyan’s treatments were beyond the control of the
Commonwealth. Specifically, counsel stated as follows during her argument:
MS. KNOX: . . . In that event, Your Honor, it’s obviously nothing
if those are his treatment date[s]. Those are his treatment
dates. . . . And I certainly wouldn’t argue that an illness is
beyond – is within the Commonwealth’s control.
N.T. Rule 600 Motion Hearing, 1/8/15, at 35.
Rather than attack, as he does on appeal, the alleged lack of evidence
supporting the Commonwealth’s claim that Officer Branyan’s illness
prevented him from attending court, Long argued before the trial court that
the Commonwealth should have instead presented the testimony of Officer
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Branyan’s partner on the night in question, Officer Schaeffer. Long’s
argument in the trial court was framed as follows:
[MS. KNOX]: However, Your Honor, I question why they didn’t
reach out to Officer Schaeffer which, in my opinion, would have
been a diligent thing to do. And I would draw Your Honor’s
attention to the language in Commonwealth v. Stallone. I do
have a copy for Your Honor. And that’s 87 A.3d 352. That says
that the Commonwealth must do everything reasonable within
its power to guarantee that trial begins on time.
And I certainly wouldn’t argue that an illness is beyond – is
within the Commonwealth’s control. However, this other officer
who was right there and saw everything, in my opinion, Your
Honor, that’s absolutely within the Commonwealth’s control.
And I submit to Your Honor that they could have and should
have brought this case within the 365 days and they haven’t.
Id. at 35-36.
It is well-settled that arguments not made before the trial court may
not be presented for the first time on appeal. See Commonwealth v.
Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) (claim of statute’s
unconstitutionality must be raised and preserved at trial and cannot be
raised for first time on appeal); see also Commonwealth v. Malloy, 856
A.2d 767, 778 (Pa. 2004) (claim of Fifth Amendment violation waived
because such claim was not “particular” theory advanced at suppression
hearing); Commonwealth v. Doyen, 848 A.2d 1007, 1011 (Pa. Super.
2004) (although appellant challenged admission of wiretap evidence in pre-
trial suppression motion, failure to raise specific challenge to authenticity of
particular judge’s signature precluded him from raising such challenge for
first time on appeal); Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa.
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Super. 1987) (theory of error different from that presented to trial court
waived on appeal, even if both theories support same basic allegation of
error giving rise to claim for relief). Accordingly, because Long did not raise
in the trial court the theory of relief he now argues on appeal, his claim is
waived for purposes of our review.
Long next claims that the trial court erred in denying his motion to
suppress evidence obtained by police during their stop of Long because the
detention was not supported by reasonable suspicion. As a result, Long
claims that all evidence seized, and all observations made, as a result of his
detention must be suppressed. In the alternative, Long asserts that the
court should have at least suppressed the gas card seized from his pocket
because: (1) the police lacked sufficient cause to believe he was armed and
dangerous and/or (2) the seizure of the gas card exceeded the limits of a
Terry4 frisk. Long is entitled to no relief.
This Court's well-settled standard of review of a denial of a motion to
suppress evidence is
limited to determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the
suppression court’s factual findings are supported by the record,
____________________________________________
4
Terry v. Ohio, 392 U.S. 1 (1968).
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the appellate court is bound by those findings and may reverse
only if the court’s legal conclusions are erroneous. Where the
appeal of the determination of the suppression court turns on
allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015)
(citation, brackets and ellipses omitted).
Under Pennsylvania law, there are three levels of encounter that aid
courts in conducting search and seizure analyses.
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or respond.
The second, an “investigative detention” must be supported by
reasonable suspicion; it subjects a suspect to a stop and period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of arrest. Finally, an arrest
or “custodial detention” must be supported by probable cause.
Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014), quoting
Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013).
Here, the trial court concluded that Long was subject to an
investigative detention that was supported by reasonable suspicion. We
agree. At the suppression hearing, Officer Branyan testified that, a few days
prior to the incident, he had been advised during roll call that there had
been complaints about thefts in the area. He also testified that he had
received an alert from the Major Crimes Unit that thefts of Ford F-250s were
up. Officer Branyan was also aware that Walsh Construction Company,
which was engaged in construction on nearby I-95, had been the recent
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victim of vehicle thefts. While on patrol at 5:00 a.m. on the 4000 block of
Paul Street, he noticed Long, alone, on a dead-end street, walking away
from a black Dodge Ram with its interior lights on, towards a white Ford F-
250, which was blocking a driveway and had its engine running. Officer
Branyan knew that a car dealership located on the corner of Paul Street and
Torresdale Avenue parked its for-sale vehicles on the sidewalk of that block
of Paul Street. As soon as Long spotted Officer Branyan’s vehicle, he
immediately turned around and walked back towards the black Dodge Ram.
Although “[t]he analysis of the totality of the circumstances
surrounding an investigatory stop when the police officer observes citizens
engaged in suspicious activity on public thoroughfares is a difficult one,” In
Interest of B.C., 683 A.2d 919, 923–24 (Pa. Super. 1996), the
Pennsylvania Supreme Court has enumerated some of the factors which
should be considered: “All of the detailed facts and circumstances must be
considered. The time is important; the street location is important; . . . the
movement and manners of the parties are important.” Commonwealth v.
Lawson, 309 A.2d 391, 394 (Pa. 1973). Moreover, “[w]hen evaluating the
totality of circumstances comprising reasonable suspicion or probable cause,
this [C]ourt will not ignore the ability of experienced police officers to draw
deductions and inferences which other persons might not make.” In
Interest of B.C., 683 A.2d at 924. Finally, “the time and place of an
encounter may indicate that a person, conspicuous through their solitary
presence at a late hour or desolate location, may be the object of a search.”
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Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa. Super. 1986), citing
Commonwealth v. Cortez, 491 A.2d 111 (Pa. 1985).
In light of the foregoing, and under the totality of the circumstances
detailed above, we conclude that the police possessed reasonable suspicion
to stop Long and investigate him. Long was alone in the early hours of the
morning, on a dead-end street, in an area where thefts had recently been on
the rise. Long was walking between two vehicles. One of those vehicles
belonged to a company that Officer Branyan knew had experienced recent
vehicle thefts. The other vehicle’s lights were on, even though Officer
Branyan knew that it was for sale and that “no one should have been in it.”
N.T. Suppression Hearing, 1/8/15, at 48. Finally, upon seeing the police
cruiser, Long began walking in the opposite direction. These facts, together
with the inferences Officer Branyan drew from them based on his
experience, were sufficient to establish reasonable suspicion that crime was
afoot.
Similarly, Officer Schaeffer had reasonable suspicion to believe that
Long was armed and dangerous, thus justifying his frisk. Carter, supra.
“An officer may conduct a Terry frisk of a suspect’s clothing for weapons if a
reasonably prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger.” Commonwealth v.
Kondash, 808 A.2d 943, 948 (Pa. Super. 2002) (citation and quotation
marks omitted). Here, when asked whether he had any weapons, Long told
Officer Schaeffer he was in possession of a knife. See N.T. Suppression
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Hearing, 1/8/15, at 45. Long’s admitted possession of a weapon, coupled
with the fact that he “wasn’t happy to see [the police], wasn’t happy to be
stopped,” id. at 48, justified Officer Schaeffer’s belief that a protective pat-
down was necessary.
Even if Officer Schaeffer was justified in performing a pat-down, Long
argues that his seizure of the Walsh Construction gas card exceeded the
limits of a Terry frisk.5 Long asserts that a Terry frisk may not be used to
discover evidence of a crime, but only to discover weapons, so that the
police may perform their duties without fear for their safety. Long argues
that the sole exception to this rule, the “plain feel” doctrine, does not apply
here, as a credit card cannot be said to feel immediately apparent as
contraband.
In support of this argument, Long relies on In re S.D., 633 A.2d 172(Pa. Super. 1993). There, an officer legally stopped the defendant and
performed a pat-down for weapons. During the course of the pat-down, the
officer felt a bulge in S.D.’s right pants pocket and retrieved a bag
containing numerous crack cocaine vials. The trial court denied S.D.’s
suppression motion. This Court reversed, citing the fact that the officer
never testified as to what it was he perceived he had felt in S.D.’s pocket.
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5
The Commonwealth asserts in its brief that Long has waived this particular
argument because he failed to raise it in his motion to suppress. We
disagree. Long advanced the “plain feel” argument at the suppression
hearing. See N.T. Suppression Hearing, 1/8/15, at 68-69.
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Thus, the trial court’s conclusion that the officer reached into S.D.’s pocket
because he feared he had felt a weapon was not supported by the record.
While In re S.D. is not squarely on point, we do believe there is merit
to Long’s claim that that neither Terry nor the plain feel doctrine justified
Officer Schaeffer’s seizure of the gas card. However, we agree with the
Commonwealth that Long’s argument is ultimately mooted by the inevitable
discovery doctrine.6
Pennsylvania courts recognize the inevitable discovery doctrine
first described by the United States Supreme Court in Nix v.
Williams, 467 U.S. 431 [] (1984). That doctrine provides that
“evidence which would have been discovered was sufficiently
purged of the original illegality to allow admission of the
evidence.” Commonwealth v. Ingram, [814 A.2d 264, 272
(Pa. Super. 2002)]. Implicit in this doctrine is the fact that the
evidence would have been discovered despite the initial illegality.
If the prosecution can establish by a preponderance of the
evidence that the illegally obtained evidence ultimately or
inevitably would have been discovered by lawful means, then the
evidence is admissible. The purpose of the inevitable discovery
rule is to block setting aside convictions that would have been
obtained without police misconduct. Thus, evidence that
ultimately or inevitably would have been recovered by lawful
means should not be suppressed despite the fact that its actual
recovery was accomplished through illegal actions. Suppressing
evidence in such cases, where it ultimately or inevitably would
have lawfully been recovered, would reject logic, experience,
and common sense.
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6
Although the trial court did not rely on the inevitable discovery doctrine in
denying Long’s suppression motion, we may affirm the court’s decision on
any basis. See Commonwealth v. O’Shea, 567 A.2d 1023, 1028 (Pa.
1989) (“[E]ven if the suppression court did err in its legal conclusions, the
reviewing court may nevertheless affirm its decision where there are other
legitimate grounds for admissibility of the challenged evidence.”).
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Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) (some
citations, brackets and quotation marks omitted).
Here, regardless of whether Officer Schaeffer had obtained the gas
card from Long’s pocket while securing the knife, Officer Branyan would
have inevitably ran a check on the license plate of the Ford F-250. The truck
belonged to Walsh Construction, which Officer Branyan was aware had
suffered recent thefts of vehicles, and was running with its lights on,
unoccupied and blocking a driveway. Once Officer Branyan learned that the
truck had been reported as stolen, the police would have had probable cause
to arrest Long and the ensuing search incident to arrest would have resulted
in the discovery of the gas card. Accordingly, Long is entitled to no relief.
Next, Long claims that the evidence presented by the Commonwealth
was insufficient to sustain his convictions. With regard to such a claim, our
scope and standard of review are well-settled.
In reviewing the sufficiency of the evidence, we consider
whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the jury’s
verdict beyond a reasonable doubt. The Commonwealth can
meet its burden 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. As an appellate court, we must review
the entire record and all evidence actually received. The trier of
fact[,] while passing upon the credibility of witnesses and the
weight of the evidence produced[,] is free to believe all, part or
none of the evidence. Because evidentiary sufficiency is a
question of law, our standard of review is de novo and our scope
of review is plenary.
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Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016) (citation
omitted).
Long challenges his convictions for unauthorized use of automobiles
and other vehicles and receiving stolen property. A person is guilty of
unauthorized use of an automobile if he operates an automobile, airplane,
motorcycle, motorboat, or other motor-propelled vehicle of another without
consent of the owner. 18 Pa.C.S.A. § 3928(a). The Commonwealth must
demonstrate that the defendant “knew or had reason to know that he lacked
the owner’s permission to operate the vehicle.” Commonwealth v.
Carson, 592 A.2d 1318, 1321 (Pa. Super. 1991). A person is guilty of
receiving stolen property if he “intentionally receives, retains, or disposes of
movable property of another knowing that it has been stolen, or believing
that it has probably been stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a).
Here, Long asserts that the Commonwealth did not prove that he ever
possessed or operated the Walsh Construction F-250 “because he was never
closer than thirty feet from the truck, the gas card did not say ‘Walsh
Construction,’ [his] fingerprints were not found in the truck, and there are
other explanations for the alcohol on his breath” aside from the open can of
beer found in the F-250. Brief of Appellant, at 41. Long also argues that
there was insufficient evidence to prove that he possessed the requisite
mens rea.
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At trial, Long stipulated that the Walsh Construction F-250 was stolen
on October 4, 2013, that Long was not an employee of Walsh Construction
and that he did not have permission to take the truck from Walsh
Construction.
The requisite knowledge that the car was stolen can be shown entirely
through circumstantial evidence. Carson, 592 A.2d at 1321. While it is
clear that mere possession without more is insufficient to show that the
defendant knew or should have known that the property was stolen, other
facts can make the inference of guilty knowledge reasonable. Id. Such
circumstances include but are not limited to the unexplained possession of
recently stolen property and flight from the police or other evidence
indicating an attempt to avoid capture. Id.In this case, the circumstances established by the Commonwelath
support an inference that Long knew he was driving a stolen vehicle. First
and foremost, the truck had the name “Walsh Construction” emblazoned on
it, yet Long was neither an employee of the company nor an authorized user
of its vehicles. Moreover, upon observing the police cruiser, Long
abandoned his approach to the truck and headed in the opposite direction.
Evidence of flight corroborates the inference of guilty knowledge. Id. at
1322. Finally, Officer Branyan smelled the odor of alcohol on Long’s breath
and there was an open can of beer in the F-250.
Long also claims that the Commonwealth failed to establish his
possession of the truck. Long bases his claim on his assertions that: (1) he
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was never less than 30 feet away from the truck; (2) the name on the gas
card did not match the name on the truck; (3) the scent of alcohol on Long’s
breath was mere coincidence; and (4) Long’s fingerprints were not found in
the truck. This claim is without merit.
Long’s first assertion is not supported by the record, as viewed in the
light most favorable to the Commonwealth; Officer Branyan testified that
Long was “within 10 to 15 feet of [the F-250] and then turned around and
went the other way.” N.T. Suppression Hearing, 1/8/15, at 52. The second
assertion is simply disingenuous; although the gas card said “Walsh Group”
and the truck bore the name “Walsh Construction,” it is reasonable to infer
that the two entities are the same or related. Likewise, while the
Commonwealth did not present scientific proof that the alcohol on Long’s
breath came from the open beer in the truck, the evidence reasonably
supports an inference to that effect. Finally, the absence of positive
fingerprint identification is not a proper sufficiency argument. “[T]he failure
of the Commonwealth to introduce . . . assertedly missing evidence . . . is
not dispositive of the sufficiency question. This court has held that the
totality of the circumstances will be determinative, not the presence or
absence of any particular piece of evidence ordinarily indicative of [the crime
in question].” Commonwealth v. Harper, 611 A.2d 1211, 1217 (Pa.
Super. 1992).
An offender need not actually be driving a vehicle to be convicted of
unauthorized use. Carson, 592 A.2d at 1323. Here, the circumstantial
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evidence adduced by the Commonwealth in this matter was sufficient to
demonstrate that Long was in possession of the F-250. Accordingly, he is
entitled to no relief on this claim.
Long next claims that the verdict of the trial court was against the
weight of the evidence. Long argues that “the circumstances of this case
weigh in favor of concluding that [he] was stealing from the truck, not that
he was in possession of or operating the truck.” Brief of Appellant, at 47.
This claim is waived.
After his conviction, but prior to sentencing, Long filed a “Motion for
Extraordinary Relief” in which he sought an arrest of judgment, ostensibly on
weight-of-the-evidence grounds. However, in the body of his motion and at
the hearing on the motion, Long presented what amounted to a sufficiency
argument. The court denied the motion on procedural grounds and
proceeded with sentencing. Long’s subsequent post-sentence motion sought
only the modification of his sentence.
Pursuant to Pa.R.Crim.P. 607(A), a claim that the verdict was against the
weight of the evidence must be raised with the trial judge in a motion for a
new trial, either before sentencing, or in a post-sentence motion. Here,
Long did not present a motion for a new trial, but rather sought arrest of
judgment. “[T]he assertion that the verdict is against the weight of the
evidence is not a proper consideration in passing on a motion in arrest of
judgment[.]” Commonwealth v. Kirkman, 399 A.2d 720, 722 (Pa. Super.
1979). Moreover, a motion for extraordinary relief under Pa.R.Crim.P. 704
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“shall have no effect on the preservation or waiver of issues for post-
sentence consideration on appeal.” Pa.R.Crim.P. 704(B)(3). Because Long
failed to properly preserve his weight claim, it is waived for purposes of
appellate review.
In his final claim, Long challenges the discretionary aspects of his
sentence. Such a claim does not entitle an appellant to review as a matter
of right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015).
Rather, before this Court can address such a challenge, an appellant must
comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011).
Here, Long preserved his claim by filing a post-sentence motion to
modify his sentence. He filed a timely notice of appeal and includes in his
brief a Rule 2119(f) statement of reasons for allowance of appeal.
Accordingly, we must determine whether Long raises a substantial question
for our review.
In his Rule 2119(f) statement, Long claims that the sentencing court
relied upon impermissible factors in fashioning his above-guidelines
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sentence. Specifically, Long asserts that the court considered his exercise of
his constitutional right to a trial, his prior criminal record and his poverty.
He also claims that the court treated certain mitigating factors, including his
intellectual disability and alcohol addiction, as aggravating factors. An
allegation that the sentencing court relied upon impermissible factors raises
a substantial question. Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa.
Super. 2006). Accordingly, we will review Long’s claim.
We begin by noting that we review a sentencing court’s determination
for an abuse of discretion. Commonwealth v. Ventura, 975 A.2d 1128,
1133–34 (Pa. Super. 2009), citing Commonwealth v. Walls, 926 A.2d 957(Pa. 2007). “An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.” Id. at 961. When
reviewing sentencing matters, this Court must accord the sentencing court
great weight as it is in best position to view the defendant’s character,
displays of remorse, defiance or indifference, and the overall effect and
nature of the crime. Commonwealth v. Hanson, 856 A.2d 1254, 1260
(Pa. Super. 2004).
[A] sentencing court may select one or more options with regard
to determining the appropriate sentence to be imposed upon a
defendant. These options include probation, guilt without further
penalty, partial confinement, and total confinement. 42 Pa.C.S.
§ 9721(a). In making this selection, the Sentencing Code offers
general standards with respect to the imposition of sentence
which require the sentencing court to impose a sentence that is
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“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.”
42 Pa.C.S. § 9721(b). Thus, sentencing is individualized; yet,
the statute is clear that the court must also “consider” the
sentencing guidelines adopted by the Pennsylvania Commission
on Sentencing. Id.
Walls, 926 A.2d at 962–63. Where a defendant is sentenced outside the
sentencing guidelines, the sentence shall be vacated if the appellate court
determines it to be unreasonable. 42 Pa.C.S.A. § 9781(c). In making this
“unreasonableness” inquiry, the General Assembly has set forth four factors
that an appellate court is to consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
Long first argues that the sentencing court erred by taking into
account his criminal history, conflating arrests and convictions, and
considering his prior offenses when they had already been factored into his
prior record score (“PRS”). Long notes that the court based its sentence, in
part, on his “13 prior arrests . . . [a]nd he started out in juvenile court[.]”
N.T. Sentencing, 9/29/15, at 12. This claim is meritless.
A court, in imposing sentence, may consider prior arrests as long as
the court recognizes that the defendant had not been convicted of the prior
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charges. Commonwealth v. Allen, 489 A.2d 906, 914 (Pa. Super. 1985),
citing Commonwealth v. Craft, 450 A.2d 1021 (Pa. Super. 1982).
Moreover, a sentencing court may consider a defendant’s prior conviction
history as long as it is but one factor in the court’s decision.
Commonwealth v. Mills, 496 A.2d 752, 754 (Pa. Super. 1985). Here, the
court considered not only Long’s prior arrests and convictions (and
distinguished between the two), but also considered the presentence
investigation report (“PSI”), Long’s long history of recidivism, his failure to
take advantage of prior opportunities for rehabilitation, and the protection of
society. The court’s reasoning reflects the fact that Long, in addition to his
juvenile history, has accumulated fourteen adult arrests, eleven convictions,
eight violations and four revocations. See N.T. Sentencing, 4/14/15, at 16;
Trial Court Opinion, 3/9/16, at 13. He accrued 67 infractions over the
course of his numerous incarcerations. See N.T. Sentencing, 4/14/15, at
23. He was arrested for the instant offense a mere nine days after he was
sentenced to two years of probation after being found to be in violation of
another court’s probation. See id. at 16. Finally, where the sentencing
court is in possession of a PSI, it is presumed that the court was aware of
and considered all relevant sentencing factors, including the defendant’s
rehabilitative needs and the need for protection of the public.
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). Based on all of the
foregoing, we find the sentencing court did not abuse its discretion in taking
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into consideration Long’s prior arrests and convictions in fashioning its
sentence.
Long also claims that the court improperly considered certain
mitigating factors as aggravating factors, specifically his drug and alcohol
dependencies and the fact that he did not graduate high school. Long
argues that low intelligence may not be used as an aggravating factor and
that drug addiction is properly characterized as a mitigating factor. Again,
Long is entitled to no relief.
First, there is nothing in the record to support Long’s contention that
the sentencing court used his low intelligence as an aggravating factor.
Rather, when defense counsel raised Long’s learning disability and the fact
that he failed to graduate from high school, counsel for the Commonwealth
responded that “[h]e didn’t graduate from high school because of unexcused
absences and denied having any disciplinary problems[.]” N.T. Sentencing,
9/29/15, at 13. The court then commented that “[w]hen you have so many
arrests,[7] you can’t go to school if you’re in jail half the time or you’re in
court.” Thus, it is apparent that the court was not using Long’s intellectual
disability as an aggravating factor, but, rather, observing the manner in
which his history of criminal behavior adversely affected his education and
development.
____________________________________________
7
As a juvenile, Long was arrested four times and was adjudicated three
times. N.T. Sentencing, 9/29/15, at 8.
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Second, although addiction is often presented as a mitigating factor in
sentencing, see, e.g., Commonwealth v. Proctor, 156 A.3d 261, 274 (Pa.
Super. 2017), Long can point to no authority for the proposition that a
sentencing court may not take into consideration a defendant’s habitual
substance abuse as it relates to that defendant’s criminal behavior. The
court engaged in the following exchange with Long at his first sentencing
hearing:
THE COURT: Let me ask you a question. When you were out
how did you get yourself arrested so many times? What all that
about?
THE DEFENDANT: Something triggers in my head when I drink.
It turns me into a different person.
THE COURT: Well, that’s the problem. And the problem is you
had a lot of chances to get help. That’s why I can’t see [parole
to a Forensic Intensive Recovery program]. I can’t see how
we’re going to help you.
N.T. Sentencing, 4/14/15, at 22. From this excerpt, it is apparent that the
sentencing court did not treat Long’s addiction, per se, as an aggravating
factor, but, rather, considered it in the broader context of Long’s lifetime of
criminal behavior and repeated failure to achieve rehabilitation. As such, the
court did not abuse its discretion in sentencing Long.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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