Com. v. Fretz, A.

J-S36042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREU FRETZ :
:
Appellant : No. 495 EDA 2021
Appeal from the Judgment of Sentence Entered January 8, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000966-2018
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JUNE 13, 2022
Andreu Fretz (Appellant) appeals from the judgments of sentence of the
Court of Common Pleas of Delaware County imposing an aggregate term of
eighty-four to one hundred and eighty months of imprisonment for possession
of a controlled substance with intent to deliver, knowing or intentional
possession of a controlled substance, and possession of a firearm by a
prohibited person.1 He raises challenges to the denial of a pre-trial motion for
the disclosure of discretionary discovery and the discretionary aspects of his
sentence. Upon careful review, we affirm.
At 6:05 a.m. on January 18, 2018, the Delaware County District
Attorney’s Criminal Investigation Division (“CID”) and the Chester City Police
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); and 18 Pa.C.S. §
6105(a)(1), respectively.
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Narcotics Task Force jointly executed a search warrant at 1152 Pine Lane in
Chester City. N.T. 11/4/20, 76-77. The officers knocked on the front door,
announced their presence as police officers, and breached the door with a ram
after thirty to forty-five seconds. Id. at 102-03. Upon their entry, the officers
observed Appellant and his girlfriend, Daynesha Dale, on a living room futon.
Id. at 77-79. The only other furnishings in the home in addition to the futon
were a television and a television stand in the same room. Id. at 77, 80, 82.
Appellant and Ms. Dale were detained and handcuffed as the officers
proceeded to execute the search warrant. Id. at 79-80. Detective Michael
Honicker of the CID was among the police officers present and read Appellant
and Ms. Dale a Miranda2 warning. N.T. 11/4/20, 75, 80-82.
Inside the home, the officers recovered the following items: a plastic
knotted bag containing forty Ziploc bags of crack cocaine that was found next
to the television in the living room; a stolen nine-millimeter Glock 19 handgun
with a fifty-round drum that was loaded with forty-seven rounds and found on
the countertop in the kitchen; paperwork including criminal court-related
documents which bore Appellant’s name and a cable bill addressed to Ms. Dale
that were found on the television stand; Appellant’s cellular phone; and
$36.00 that was recovered from Appellant’s person.3 N.T. 11/4/20, 82-92,
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
3For purposes of sentencing, we note the total weight of the seized drugs was
6.68 grams. N.T. Trial, 11/4/20, 82, 98; 1/8/21, 8-9; Trial Exhibit CW5,
(Footnote Continued Next Page)
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95-98, 100-101, 109-10, 112-13, 175-76; Trial Exhibit CW5, Stipulation for
Lab No. H18-01045-1; Trial Exhibit CW7, Ballistics Report, 1/22/18. Following
the recovery of those items, Detective Honicker informed Appellant and Ms.
Dale that they were under arrest. N.T. 11/4/20, 92-93. In the absence of
any police questioning, Appellant “blurted out” that the drugs and the firearm
were his and that they did not belong to Ms. Dale. Id. at 93-94 (“[L]ook, it’s
all mine; the gun is mine, the drugs are mine; it has nothing to do with my
girlfriend”).
Detective Honicker initially trained his attention to 1152 Pine Lane after
a confidential informant (“CI”) provided him information concerning suspected
illegal drug activity at that location. N.T. 3/22/19, 31-32. Detective Honicker
had utilized this particular CI for the preceding six years, and, in just 2017,
information from that CI was used for at least fifty search warrant applications.
Id. at 31-32. While the CI had no direct knowledge of crimes occurring at
1152 Pine Lane, the CI used an unwitting informant (“UI”) to gain access to
that home for the purpose of buying drugs. Id. at 32-33, 36-37. Four
controlled purchases were completed by the UI at that location between
January 1, 2018, and the search warrant execution on January 18, 2018. Id.
at 37-38, 40.
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Stipulation for Lab No. H18-01045-1. The trial court has incorrectly indicated
that the weight of the drugs was .668 grams in its opinion. Trial Court Opinion,
4/23/21, 16, 33.
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Before each of the sales, Detective Honicker would search the CI and
the CI’s car to ensure the absence of any drugs or currency, and then provide
the CI with buy money for the UI. N.T. 3/22/19, 38-40. During each of the
sales, Detective Honicker would observe, from a stationary spot near the
intersection of W. 12th Street and Pine Lane, the CI driving the UI to the
location, the UI gaining entry to 1152 Pine Lane, and the UI returning to the
CI’s car. Id. at 38, 40. Another detective would assist Detective Honicker
with mobile surveillance. Id. at 40. After each of the controlled purchases,
Detective Honicker would follow the CI and meet with them at a
predetermined location after the UI had left the car that the CI had been
driving. Id. at 41. Each time, the CI provided Detective Honicker with plastic
knotted bags of powdered cocaine that were purchased by the UI. N.T.
3/22/19, 41; N.T. 11/4/20, 110-13.
Appellant filed an omnibus pretrial motion for discovery seeking, inter
alia, to suppress all physical evidence and statements and to compel the
Commonwealth to identify its confidential informant and the dates of the
controlled substance purchases that Detective Honicker observed at 1152 Pine
Lane. With respect to the request for the controlled purchase dates, which is
relevant for this appeal, Appellant alleged that the information was necessary
for “presenting either an alibi or potential witnesses to contradict the narrative
contained within Detective Honicker’s application for [the] search warrant.”
Omnibus Pretrial Motion, 8/30/18, ¶ 5.
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Appellant took the position that “no confidential informant actually
exist[ed…] and that it[ was] just a fabricated narrative in order to justify
getting probable cause to search [his] house.” N.T. 1/25/19, 5. The
Commonwealth contested the request for the controlled purchase dates
because it would “lead directly to the ascertainment of the identity of the
informant.” Id. at 12. The court granted an evidentiary hearing so Appellant
could assess the veracity of Detective Honicker’s statements made in support
of the affidavit of probable cause resulting in the issuance of the search
warrant for 1152 Pine Lane. N.T. 2/8/19, 39-43.
Detective Honicker testified concerning the surveillance operation
leading up to the issuance of the search warrant. N.T. 3/22/19, 36-41. He
offered his opinion that the CI would be placed in danger if their identity were
revealed. Id. at 34-35 (“[The c]onfidential informant that I’ve been utilizing
would probably be killed for some of the people that he or she did.”); see
also id. at 44-45 (Detective Honicker opining as to the endangerment of the
CI if information about their involvement in other criminal matters were
revealed), 54-55 (cross-examination of Detective Honicker concerning the
possible danger to the CI that would result from revealing the CI’s involvement
in other criminal matters). He confirmed that he did not know the identity of
the UI used by the CI. Id. at 44, 66. He also confirmed that he did not lose
sight of the CI between the times that the UI would leave 1152 Pine Lane and
the detective would meet with the CI at their predetermined meet-up location.
Id. at 47-48.
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Following the hearing, Appellant agreed that he failed to meet his
burden for entitlement to the names of the CI and the UI, however, he
renewed his arguments in support for his requests for, inter alia, the controlled
purchase dates. Appellant’s Memorandum Regarding Discovery Items Being
Sought, 6/25/19, 1-2. He asserted that the Commonwealth failed to establish
“any real, particular danger” regarding himself and the informants if his
additional discovery requests were granted. Id. With respect to the controlled
purchase dates, he alleged that it would be “confounding” to insinuate that he
would be able to remember offhand who he had allegedly sold cocaine to
eighteen months earlier, and thus the discovery of the dates would not lead
to the discovery of the CI’s identity. Id.
The court denied Appellant’s request for the controlled purchase dates.
It found that “the information sought may easily lead to the identification of
the CI and UI” and Appellant fell “woefully short” of demonstrating a good
faith basis that Detective Honicker had willfully included misstatements of fact
in his affidavit of probable cause, and thus failed to meet his threshold burden
for proving entitlement to the requested discovery. Order, 9/4/19, 9, 12-13.
The court also found that the requested discovery “would jeopardize the safety
of the nongovernmental informant.” Id. at 13. Appellant filed a motion for
reconsideration, alleging that Detective Honicker overstated the potential for
harm to the CI by answering leading questions to which Appellant did not
object. Motion for Reconsideration, 9/12/19, 3-5 & n.1. The court denied the
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reconsideration motion after hearing argument from counsel. Order,
10/11/19, 1.
On November 4, 2020, the trial court denied Appellant’s motion to
suppress the physical evidence recovered from 1152 Pine Lane. N.T. 11/4/20,
61, 63-64; Order, 11/4/20, 1. The court also held in abeyance a ruling on his
motion to suppress his statement about the drugs and the firearm. N.T.
11/4/20, 61-62, 64. Appellant proceeded to a non-jury trial. The
Commonwealth presented the testimony of Detective Honicker and Officer
Timothy Garron, an expert witness in the fields of the distribution and
packaging of controlled substances for sale and the identification of drug
paraphernalia. Appellant marked and moved into the evidentiary record a CID
Incident Report with respect to his arrest and otherwise declined to present
any testimony. Id. at 179-80. The court thereafter denied his motion to
suppress his statement about the drugs and the firearm and found him guilty
of the above-referenced charges.4 N.T. 11/10/20, 26-27, 51; Order,
11/10/20, 1.
On January 8, 2021, the court sentenced Appellant to concurrent prison
terms within the standard range recommended by the Sentencing Guidelines:
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4 With respect to the firearms charge, defendant stipulated that he was
ineligible to possess a firearm due to two prior convictions for possession of a
controlled substance with intent to deliver and a prior conviction for
possession of a firearm by a prohibited person. N.T. 11/4/20, 66, 99-100;
Trial Exhibit CW6, Stipulation Regarding Disqualifying Offenses. Prior to trial,
the Commonwealth withdrew additional charges for possession or use of drug
paraphernalia and theft by receiving stolen property. N.T. 11/4/20, 65-66.
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eighty-four to one hundred and eighty months for possession of a firearm by
a prohibited person and thirty-six to seventy-two months for possession of a
controlled substance with intent to deliver.5 The trial court denied a timely-
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5 Knowing or intentional possession of a controlled substance merged for
sentencing purposes. N.T. 1/8/21, 4-5.
Where Appellant had a prior record score of five (see N.T. 1/8/21, 8),
the Sentencing Guidelines recommended, upon applying the deadly
weapon/possessed matrix for the drug offense and the standard sentencing
matrix for the firearm offense, minimum prison terms of seventy-two to ninety
months, plus or minus twelve months for aggravating or mitigating
circumstances, for possession of a firearm by a prohibited person, and thirty
to thirty-six months, plus or minus six months for aggravating or mitigating
circumstances, for possession of a controlled substance with intent to deliver.
204 Pa. Code §§ 303.10(a) (deadly weapon enhancement; 7th Ed., Amend.
4), 303.15 (offense listing; 7th Ed. Amend. 4; providing offense gravity scores
of seven for possession of between five and ten grams of cocaine with the
intent to deliver, and eleven for a second or subsequent conviction of
possession of a firearm by a prohibited person where the gun was loaded or
ammunition was available), 303.16(a) (basic sentencing matrix; 7th Ed.
Amend. 4), 303.17 (deadly weapon enhancement/possessed matrix; 7 th Ed.
Amend. 4). Because this was a second or subsequent conviction of possession
of a controlled substance with intent to deliver for Appellant, 35 P.S. § 780-
115 permitted the imposition of up to twenty years of imprisonment for the
drug charge. 35 P.S. § 780-113(f)(1.1) (ten-year maximum imprisonment
limit for possessing, inter alia, crack cocaine with the intent to distribute); 35
P.S. § 780-115 (permitting that a defendant “may be imprisoned for a term
up to twice the term otherwise authorized for a conviction under 35 P.S. 780-
113(a)(30).
Appellant acknowledges that the record is silent as the application of the
deadly weapon enhancement for the drug charge but nevertheless agrees that
it was factored into the utilized Guideline Sentence Form and the
Commonwealth’s recitation of the applicable guideline ranges. Brief for
Appellant, 14 n.3. In any event, he agrees to the applicability of that
enhancement for the drug charge. Id.
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filed post-sentence motion for reconsideration of sentence. This timely appeal
followed.6
Appellant presents the following issues for our review:
1. Whether the trial court erred and abused its discretion by
denying [A]ppellant’s motion to produce discovery,
specifically the dates of four alleged drug transactions inside
1152 Pine Lane which led to [the] execution of a search
warrant and [A]ppellant’s arrest, in violation of
Pennsylvania Rule of Criminal Procedure 573(B) and
[A]ppellant’s Due Process Rights under the United States
and Pennsylvania Constitutions?
2. Whether the trial court erred as a matter of law and violated
the discretionary aspects of sentencing when it imposed a
manifestly excessive and unreasonable aggregate sentence
of 7 to 15 years of incarceration, inasmuch as the trial court
failed to state any reason for imposition of the sentence; the
court failed to give individualized consideration to
appellant’s personal history, rehabilitative needs and
background and applied the incorrect sentencing guidelines;
and the sentence was in excess of what was necessary to
address the gravity of the offense, the protection of the
community and [A]ppellant’s rehabilitative needs?
Appellant’s Brief, at 3 (suggested answers omitted).
In his first issue, Appellant challenges the denial of his request for the
Commonwealth to disclose the dates of the controlled drug purchases.
Appellant’s Brief, at 22-33. He alleges that the Commonwealth failed to
demonstrate that the release of the dates would lead to the discovery of the
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6 Appellant timely filed his notice of appeal within thirty days of the denial of
his post-sentence motion consistent with Pa.R.Crim.P. 720(A)(2)(a). He also
timely filed a statement of errors complained of on appeal within twenty-one
days of the court’s issuance of an order pursuant to Pa.R.A.P. 1925(b).
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CI’s identity and, in any event, the Commonwealth failed to “make a
reasonably specific showing that the CI or UI would be placed in jeopardy due
to disclosure of their identities.” Id. at 22. He argues that the requested
discovery was material to the preparation of a defense and to his ability to
litigate his suppression motion and thus the court below erred by failing to
grant his discovery request. Id. at 22-23. His assertions about the
unlikelihood of potential discovery of the identity of the CI and any potential
harm posed to the CI or UI are based on the fact that “the CI did not engage
in any of the transactions [addressed in Detective Honicker’s affidavit of
probable cause] and was not present for them.” Id. at 22, 27-28.
The court below denied the discovery request because it found that
information about the dates “would easily lead to the identification of both”
the CI and the UI and, in any event, Appellant had failed to make a threshold
showing that Detective Honicker had willfully included misstatements of fact
in his affidavit of probable cause. Trial Court Opinion, 4/26/21, 9-11, 20, 24,
quoting, Order, 8/29/19, ¶¶ 13-18. The court noted that Appellant’s “proof
amount[ed] to little more than a bald denial [that illegal drugs were sold
during the controlled buys addressed by Detective Honicker] and a mere
allegation that certain discovery may be helpful to challenge the credibility of
the police officer concerning the existence of the controlled buys.” Trial Court
Opinion, 4/26/21, 10, 24-25, quoting, Order, 8/29/19, ¶ 16.
“Questions involving discovery in criminal cases lie within the discretion
of the trial court and that court’s decision will not be reversed unless such
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discretion was abused.” Commonwealth v. Wilson, 147 A.3d 7, 25 (Pa.
Super. 2016). “An abuse of discretion is not merely an error of judgment, but
is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Sandoval, 266 A.3d 1098, 1101 (Pa. Super. 2021) (citation omitted).
The discovery in question was sought pursuant to Pa.R.Crim.P.
573(B)(2)(a)(iv) which pertains to discretionary discovery for which Appellant
had the burden of proving: (1) the request for the controlled purchase dates
was material to the preparation of a defense; (2) the request was reasonable;
and (3) the information disclosed by the request would be in the interests of
justice. Pa.R.Crim.P. 573(B)(2)(a)(iv); see also Commonwealth v. Garcia,
72 A.3d 681, 684 (Pa. Super. 2013). This Court has previously explained that,
in exercising its power to grant or deny a request for discretionary discovery,
the trial court is to be guided by the following principle:
In order to provide adequate information for informed pleas,
expedite trials, minimize surprise, afford opportunity for effective
cross-examination, and meet the requirements of due process,
discovery prior to trial should be as full and free as possible
consistent with the protections of persons, effective law
enforcement, the adversary system, and national security.
Commonwealth v. Novasek, 606 A.2d 477, 482-83 (Pa. Super. 1992)
(addressing the precursor rule to Pa.R.Crim.P. 573(B)(2)(a)(iv), Pa.R.Crim.P.
305(B)(2)(d); citation omitted). Speaking for an equally divided court, former
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Justice Stephen A. Zappala, Sr., further clarified the precursor rule to
Pa.R.Crim.P. 573(B)(2)(a)(iv) in the following manner:
[Rule 305(B)(2)(d)] requires a showing that in addition to being
material to the preparation of the defense and reasonable, the
request be in the interests of justice. It is important to note that
the Rule speaks in terms of a showing by the defendant. These
conditions cannot be assumed, and they must be supported by
evidence on the record. It is in this context that the evidence
presented at the hearing must be examined to determine whether
the defendant met his burden (or more precisely whether the
court abused its discretion in determining he had).
Commonwealth v. Iannaccio, 480 A.2d 966, 971 (Pa. 1984), cert. denied,
474 U.S. 830 (1985) (Zappala, J., opinion in support of affirmance, emphasis
in original).7
In the instant case, Appellant sought the dates of the four controlled
drug purchases to challenge the veracity of Detective Honicker’s assertions in
his affidavit of probable cause for the search warrant for 1152 Pine Lane.
Appellant’s theory was that Detective Honicker was untruthful, there was no
confidential informant, and the assertions in the affidavit of probable cause
were fabricated to create grounds for searching the Pine Lane home. He
reasoned that he could not possibly contest the allegations in the affidavit of
probable cause without knowing, at a minimum, the dates of the controlled
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7 We note that nothing in the opinions supporting reversal which were penned
in Iannaccio by former Chief Justice Robert N.C. Nix, Jr., or former Justice
Rolf Larsen contradicts Justice Zappala’s above-quoted statement. Id., 480
A.2d at 972-80 (Opinion in support of reversal by Nix., C.J. and Opinion in
support of reversal by Larsen, J.); Novasak, 606 A.2d at 483 n.5.
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drug purchases. At the same time, the Commonwealth did not want to reveal
those dates because they reasoned that, if provided with the dates, Appellant
could deduce who the UI was who made the drug purchases and then, with
further investigation, deduce the identity of the CI. The Commonwealth
through the testimony of Detective Honicker alleged that the CI, who was
referred to as an ongoing source of information for the police, would be placed
in danger if their identity were revealed.
The threshold question for this Court is whether Appellant met his initial
burden of showing that the requested discovery was material to the
preparation of a defense. See Commonwealth v. Bonasorte, 486 A.2d
1361, 1373-74 (Pa. Super. 1984) (en banc) (“[W]e hold that a defendant
seeking production of a confidential informant at a suppression hearing must
show that production is material to his defense, reasonable, and in the interest
of justice”). In Bonasorte, the discretionary discovery at issue was the
identity of a police informant and the defendant, like Appellant, wanted the
discretionary discovery to advance his claim that a police-officer affiant
willfully included misstatements of facts in an affidavit of probable cause. This
Court held that, in those circumstances, the defendant had the initial burden
to demonstrate: (1) “some good faith basis in fact” to believe that the police
officer-affiant included misstatements of fact in their affidavit of probable
cause “which misrepresents either the existence of the informant or the
information conveyed by the informant;” (2) that, without the informant’s
information, there would not have been probable cause; and (3) that the
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production of the informant is the only way in which the defendant can
substantiate his claim. Id. at 1374. Only after such a showing is made by
the defendant would the issue of the production of the informant be within the
discretion of the court. Id.Pursuant to Commonwealth v. Hall, 302 A.2d 342 (Pa. 1973), a
defendant can challenge the veracity of facts establishing probable cause
recited in an affidavit supporting a search warrant, through cross-examination
of the police officer-affiant, without any prior showing of the potential falsity
of those facts. “If the only ‘evidence’ produced at the suppression hearing is
a defendant’s bald assertion (e.g., that the informant does not exist or that
the affiant misrepresented information conveyed by [the] informant), then the
defendant has failed to meet his threshold burden” for seeking production of
the identity of a police informant. Bonasorte, 486 A.2d at 1374.
The instant case differs from Bonasorte in the sense that Appellant was
seeking the dates of the controlled purchases rather than directly seeking the
identity of the CI used by Detective Honicker. This Court and our Supreme
Court, however, have afforded the same protection granted to the identity of
confidential informants to other information concerning surveillance
operations that advance the same goal of protecting identities of individuals
who provide information to the police or prosecutors regarding criminal
activities. See, e.g., Commonwealth v. Rodriguez, 674 A.2d 225, 228 (Pa.
1996) (holding that the same balancing test that applies to requests for the
discovery of the identities of confidential informants is equally applicable to
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cases where the Commonwealth asserts that disclosure of an exact
surveillance location would jeopardize an ongoing investigation or place
individuals in peril); Commonwealth v. Jennings, 630 A.2d 1257, 1261 (Pa.
Super. 1993) (discovery of a police officer’s confidential surveillance site is
discretionary with a trial court and is subject to qualified privilege).
We find no abuse of discretion with the trial court’s application of the
Bonasorte opinion when reviewing Appellant’s request for the controlled
purchase dates. The court treated the request for the controlled purchase
dates like a request for the identity of the utilized CI because it reasoned that
the information requested “would easily lead to the identification” of both the
CI and the UI. Trial Court Opinion, 4/26/21, 21. That finding was consistent
with Detective Honicker’s testimony, N.T. 3/22/19, 34-35, 44-45, and was
reasonably accepted where the court inferred that the exact dates for the four
visits to the 1152 Pine Lane home in a less-than-three week span would have
allowed whoever was conducting those drug sales at that location to deduce
the identity of the UI and, with further investigation, the identity of the CI.
For purposes of evaluating Appellant’s discovery request claim, this Court
cannot upset the credibility determinations of the suppression court, “within
whose sole province it is to pass on the credibility of witnesses and the weight
to be given their testimony.” Commonwealth v. Poplawski, 130 A.3d 697,
711 (Pa. 2015).
After determining that the trial court acted within its discretion when it
treated the request for the dates as akin to a request for the CI’s identity, the
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next question is whether Appellant demonstrated “some good faith basis in
fact” to believe that Detective Honicker included misstatements of fact in his
affidavit of probable cause. Here, the record supports the trial court’s
conclusion that Appellant fell short of satisfying that burden. Trial Court
Opinion, 4/26/21, 24 (“No evidence was presented to call into question the
veracity of Det. Honicker’s averment that the four separate controlled buys
occurred in January 2018.”). Appellant appeared to concede as much during
his counsel’s argument for reconsideration of the denial of his discovery
request when his counsel referred to the basis for his request itself as a “bald
assertion.” N.T. 10/9/19, 5 (“All of the information that we could show that
would rise above the Defendant’s bald assertion that this didn’t happen, is
being withheld by the Commonwealth.”).
Appellant had the opportunity pursuant to Hall to pursue cross-
examination of Detective Honicker to test the veracity of his affidavit of
probable cause. The trial court, consistent with the record, concluded that
Detective Honicker’s testimony at that hearing did not support the notion that
the detective misrepresented the information included in the affidavit.
Appellant’s bald assertion as to the potential usefulness of the dates for
purposes of impeaching Detective Honicker’s testimony was inadequate to
sustain Appellant’s discovery request where he failed to otherwise
demonstrate a good faith basis for showing that the detective presented
misstatements in his affidavit. Commonwealth v. Herron, 380 A.2d 1228,
1230 (Pa. 1977) (“[B]efore disclosure of an informer’s identity is required in
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the face of the Commonwealth’s assertion of privilege, more is necessary than
a mere assertion by the defendant that such disclosure might be helpful in
establishing a particular defense.”); Commonwealth v. Belenky, 777 A.2d
483, 488 (Pa. Super. 2001) (“More than a mere assertion that disclosure of
the informant’s identity might be helpful is necessary.”).
With his instant claim, Appellant appears to be alleging that whenever
a defendant cannot demonstrate the materiality of his discovery request then
the request should be automatically granted because disclosure of the
discovery could potentially lead to further information for investigation. If we
were to agree with him, contrary to Bonasorte’s discussion of his own
threshold burden for his request, every suspect subject to a search warrant
under analogous circumstances would be able to assert that a controlled
purchase with a CI never occurred and thereby request production of the CI
knowing the Commonwealth’s reluctance to expose its confidential informants,
thereby hoping that the Commonwealth either withdraws the charge or suffers
suppression so as to protect its informant from possible harm. Such a rote
outcome would undermine the public interest which supports the basis for the
Commonwealth’s qualified privilege as to the protection of their informant’s
identity. See Commonwealth v. Baker, 946 A.2d 691, 696 (Pa. Super.
2008) (“As this Court has repeatedly noted, there is an important ‘public
interest in protecting the free flow of information’ in furtherance of effective
law enforcement.”) (citation omitted).
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Having failed to demonstrate a good faith basis for his misstatements-
of-fact theory for disclosure, Appellant alternatively posits that “[t]he
information could have led to a potential alibi defense.” Appellant’s Brief, at
23. That assertion is unavailing. He could not demonstrate that the controlled
purchase dates were material for that hypothetical defense because he was
charged with the offenses resulting from the search, not the controlled
purchase sales, and the validity of the search at 1152 Pine Lane had nothing
to do with the identity of the person who sold drugs to the UI on the
undisclosed dates. Whether that person was Appellant or not, the sales
established probable cause and the search would still have occurred. As
Appellant’s guilt was fully proven by the recovery of the drugs and the gun
during the search and Appellant’s own inculpatory statement as to his
ownership of the drugs and the gun, an alleged alibi for the controlled
purchase dates would not have advanced a trial defense. See Belenky, 777
A.2d at 489 (Belenky’s reliance on opinions in single transaction sales cases
was misplaced with respect to his request for disclosure of a confidential
informant’s identity where he was charged with offenses resulting from a
search, rather than from sales).
For purposes of his discovery request, Appellant failed to make the
threshold showing that there was a good faith basis for his misstatements-of-
fact claim which formed the basis of his baldly-asserted suppression claim. In
the alternative, he was unable to demonstrate that the controlled purchase
dates would have been material for the preparation of a trial defense. Because
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the trial court acted within its discretion when it denied Appellant’s discovery
request, his first issue lacks merit.
In his second issue, Appellant challenges the discretionary aspects of
his sentence which included concurrent terms within the standard range
recommended by the Sentencing Guidelines. Appellant’s Brief, at 33-41; see
also supra n.3. In particular, he alleges that the court abused its discretion
by: (1) imposing “a manifestly excessive and unreasonable” aggregate
sentence; (2) failing to state any reasons for the imposition of the sentence;
(3) failing to give individual consideration to his personal history, rehabilitative
needs, and background; (4) applying an incorrect sentencing guideline range
by miscalculating his prior record score; and (5) sentencing him in excess of
what was necessary to address the gravity of the offense, the protection of
the community, and his rehabilitative needs. Upon our review, we conclude
that this claim is waived as unpreserved and, in any event, meritless.
There is no absolute right to appellate review of a discretionary
sentencing claim. Commonwealth v. Solomon, 247 A.3d 1163, 1167 (Pa.
Super. 2021) (en banc). Rather,
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence; see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
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Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(citation omitted). Following satisfaction of all four elements, this Court then
reviews the underlying discretionary aspects of sentencing issue, pursuant to
an abuse of discretion standard. Commonwealth v. Akhmedov, 216 A.3d
307, 328-29 (Pa. Super. 2019) (en banc).
We initially note that Appellant has failed to preserve his instant claim
for review. A defendant must preserve a discretionary sentencing claim either
at sentencing or in a timely-filed post-sentence motion, otherwise the claim is
waived on direct review. See Pa.R.A.P. 302(a) (“Issues not raised in the trial
court are waived and cannot be raised for the first time on appeal.”);
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(v) (setting the time-limit for filing a post-
sentence motion and noting that a post-sentence motion may include a motion
for modification of sentence); see also Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa. Super. 2013) (holding that objections to the discretionary
aspects of a sentence are generally waived if they are not raised at sentencing
or preserved in a post-sentence motion).
At sentencing, defendant did not raise any challenges to the
discretionary aspects of his sentence following the imposition of his concurrent
terms of imprisonment. N.T. 1/8/21, 48-60. In a timely post-sentence
motion, he raised a single discretionary sentencing claim alleging an as-
applied due process violation/cruel and unusual punishment claim concerning
the trial court’s use of the recommended Sentencing Guideline ranges, as
follows:
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4. At sentencing, and with our presentence
memorandum, defendant was asking Your Honor to disregard the
guidelines as they applied in this case on Constitutional due
process concerns.
5. This motion for reconsideration is being filed to
preserve our arguments against the guidelines that have been
associated with these charges, both under due process and cruel
and unusual punishment provisions found in U.S. CONST. AMEND.
VIII and PA CONST. ART. I, § 13.
6. Because the argument of the defendant is a hybrid
between constitutionality concerns and discretionary sentencing
concerns, the defense did not want to fall victim to the “waiver”
precedents that undo many legal arguments on appeal.
7. The defense is therefore preserving in this motion,
and asking Your Honor to once again reconsider the legality,
applicability, and constitutionality of the guidelines as they relate
to this case, most particularly those associated with 18 Pa.C.S.
[§] 6105(a.1)(1)(1.1)(I)(A).
8. Because the guidelines are excessively harsh and
should therefore not be applied to this defendant, we are arguing
that the sentence imposed by Your Honor, though following the
guidelines, constitutes an abuse of discretion, because it is unduly
harsh and excessive under these particular circumstances.
Post-Sentence Motion, 1/15/21, ¶¶ 4-8 (footnotes omitted).
The claim raised in the post-sentence motion referenced his arguments
in his pre-sentence memorandum and his arguments prior to the imposition
of his sentence in which he asserted that the guidelines should not be applied
in his case because they recommended significant jail time for non-violent
offenses, he was rendered ineligible to possess a firearm due to prior non-
violent offenses, and the guidelines’ treatment of recidivist violators of 18
Pa.C.S. § 6105 fostered systemic racism. Pre-Sentence Memorandum,
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12/16/20, 7-14; N.T. 1/8/21, 40-42, 44-47. That due process violation/cruel
and unusual punishment claim is distinct from all of his discretionary
sentencing arguments raised on appeal. Accordingly, defendant waived his
instant claim. See Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003) (discretionary sentencing claim waived where, although appellant filed
a post-sentence motion for reconsideration of sentence, the motion did not
include the specific claim raised on appeal); Commonwealth v. Reeves, 778
A.2d 691, 692-93 (Pa. Super. 2001) (by failing to raise the specific claim that
the trial court failed to state reasons for its sentence on the record in a post-
sentence motion, the trial court was deprived of an opportunity to consider
the claim and thus the claim was waived on appeal).
In any event, even assuming arguendo that Appellant fully preserved
his claim and demonstrated that each of his distinct arguments raised
substantial questions for review, we cannot conclude in these precise
circumstances that the trial court abused its discretion by imposing concurrent
sentences within the standard range recommended by the Sentencing
Guidelines.
Upon conducting a merits analysis for a discretionary sentencing claim,
we are mindful of the following principles:
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
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judgment for reasons of partiality, prejudice, bias or ill[-]will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Moye, 266 A.3d 666, 676-77 (Pa. Super. 2021) (citation
omitted). This deferential standard is based on the recognition that “the
nuances of sentencing decisions are difficult to gauge from the court transcript
used upon appellate review.” Commonwealth v. Perry, 32 A.3d 232, 236
(Pa. 2011), quoting Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa.
2007).
At the outset, Appellant’s characterization of his sentence as excessive
and unreasonable is not supported by the record. Because his individual terms
of imprisonment are within the standard range recommended by the
Sentencing Guidelines, they are presumptively reasonable and, for this Court
to vacate them, Appellant would need to demonstrate that the application of
the guidelines in this case would have been clearly unreasonable. See 42
Pa.C.S. § 9781(c)(3) (appellate court must vacate sentence imposed within
the sentencing guidelines only if it “involves circumstances where the
application of the guidelines would be clearly unreasonable”); see also
Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa. Super. 2019) (“[W]here
a sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code.”);
Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super. 2016) (“In this
case, Appellant was sentenced within the sentencing guidelines. Accordingly,
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we may only vacate if this ‘case involves circumstances where the application
of the guidelines would be clearly unreasonable[.]’”) (citation omitted).
To prove that his sentence was unreasonable or that the application of
the guidelines was unreasonable, Appellant would necessarily need to
demonstrate circumstances that would have necessitated the imposition of a
sentence within the mitigated range recommended by the guidelines or below
that range. With the exception of a “double counting factors” claim that we
will address infra, Appellant does not address any mitigating circumstances in
his argument. He claims that the application of the guidelines was
unreasonable because the trial court supposedly did not consider sentencing
factors enumerated at 42 Pa.C.S. § 9721(b), however, he fails to apply those
factors to his own circumstances to show that his sentence was inconsistent
with the protection of the public, his rehabilitative needs, and the gravity of
his offenses as they related to the community. Appellant’s Brief, at 38. Had
he attempted to make such a demonstration he would have struggled to
characterize his instant offenses as an unfortunate aberration, inconsistent
with his character and needs, where the record reflected that he committed
his instant firearm and drug offenses while on parole for prior firearm and
drug charges and was arrested for the instant charges within 66 days of being
paroled on the former charges. N.T. 1/18/21, 6-8, 16; Commonwealth’s
Sentencing Memorandum, 12/30/20, 2-6 (unnumbered).
To the extent that Appellant alleges that the trial court abused its
discretion by not offering a statement of reasons on the record for imposing
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concurrent sentences within the standard range recommended by the
Sentencing Guidelines, he fails to cite any existing precedent supporting an
argument for vacation of his sentence on that basis. This Court has rejected
similar arguments. See Commonwealth v. Leatherbury, 116 A.3d 73, 83
(Pa. Super. 2015) (“Here, each of Leatherby’s sentences was within or below
the standard range of the sentencing guidelines … Thus, the trial court was
not required to provide a statement of reasoning and this claim does not raise
a substantial question.”); Commonwealth v. Szarko, 616 A.2d 26, 27 (Pa.
Super. 1992) (court was not required to provide a contemporaneous written
statement for a deviation from the guidelines where it imposed a sentence
within the standard range of the guidelines). In any case, this subpart of
Appellant’s claim is unavailing because, by indicating on the record that it
possessed and reviewed a pre-sentence investigation report, the trial court
nevertheless satisfied the requirement of stating its reasons for the sentence
on the record. N.T. 1/8/21, 51 (trial court confirming that it had reviewed
and considered a pre-sentence investigation report). See Commonwealth
v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (“The sentencing judge can
satisfy the requirement that reasons for imposing sentencing be placed on the
record by indicating that he or she has been informed by the pre-sentencing
report; thus properly considering and weighing all relevant factors.”); accord
Commonwealth v. Miller, --- A.3d ---- 2022 WL 1482496, *4 (Pa. Super.,
filed May 11, 2022); Commonwealth v. Edwards, 194 A.3d 625, 638 (Pa.
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Super. 2018); Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.
Super. 2009).
The court’s review of a pre-sentence investigation report also rendered
meritless Appellant’s assertion that the court failed to give requisite
consideration of the statutory sentencing factors under 42 Pa.C.S. § 9721(b)
and any relevant mitigating factors. When a court possesses a pre-sentence
investigation report, it is presumed that the court “was aware of the relevant
information regarding defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988); see also Miller, --- A.3d ----, at *3
(“Notably, where a sentencing court is informed by a PSI, ‘it is presumed that
the court is aware of all appropriate sentencing factors and considerations,
and that where the court has been so informed, its discretion should not be
disturbed.’”) (citation omitted).
Appellant also fails to demonstrate an abuse of discretion by noting that
the court did not specifically reference the statutory sentencing factors under
42 Pa.C.S. § 9721(b). We note, “[t]he [sentencing] court is not required to
parrot the words of the Sentencing Code, stating every factor that must be
considered under Section 9721(b), [however,] the record as a whole must
reflect due consideration by the court of the statutory considerations at the
time of sentencing.” Commonwealth v. Johnson-Daniels, 167 A.3d 17, 26
(Pa. Super. 2017) (internal citation and quotations omitted). Here, the court
noted that it had considered the pre-sentence investigation report, a
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psychological evaluation, a substance abuse evaluation, and the pre-sentence
memorandums prepared by the parties in formulating its sentence. N.T.
1/8/21, 51-52. The court also notes in its opinion that it considered
“Appellant’s background, personal history, extensive criminal background
including prior convictions for Possession with Intent to Deliver a Controlled
Substance and Person Not to Possess a Firearm, and the rehabilitative needs
of the Appellant.” Trial Court Opinion, 4/26/21, 39. Moreover, the court heard
arguments from counsel that now cover forty-five pages of notes of testimony
before it announced its sentence. Based on the foregoing, we conclude that
the court imposed an individualized sentence.
Lastly, Appellant argues that the court incorrectly applied the
Sentencing Guidelines because his prior conviction for possession of a
controlled substance with intent to deliver, which rendered him ineligible to a
possess a firearm, was factored into the calculation of his prior record score.
Appellant’s Brief, at 39-40. He reasons that the prior drug conviction was an
element of his new firearms offense and thus the consideration of that drug
conviction for the prior record score calculation resulted in an improper
double-counting of sentencing factors. Id. In support of this claim, Appellant
relies on the Supreme Court’s decision in Commonwealth v. Jemison, 98
A.3d 1254 (Pa. 2014), for the holding that a prior conviction of a specific,
enumerated offense is an element of the offense of possession of a firearm by
a prohibited person, and the Sentencing Guideline’s prohibition at 204 Pa.
Code § 303.8(g)(3) on factoring in a prior record score “[a]ny prior conviction
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which contributed to an increase in the grade of a subsequent conviction,
except for prior Driving Under Influence of Alcohol or Controlled Substances
convictions.” Appellant’s Brief, at 39-40.
This Court rejected an identical claim concerning a prior record score
calculation for a conviction for possession of a firearm by a prohibited person
in an unpublished opinion in Commonwealth v. McSorley, 2019 WL
3306744 (Pa. Super., filed July 23, 2019) (unpublished memorandum). See
Pa.R.A.P. 126(b)(1)-(2) (non-precedential decisions of this Court filed after
May 1, 2019 may be cited for persuasive value). McSorley, like Appellant,
relied on Jemison as his principal support and this Court rejected the same
interpretation that Appellant has of the decision in that case:
McSorley’s reliance on Jemison is misguided because Jemison
did not address sentencing. Compare Appellant’s Brief, at 12
(arguing Jemison overturned [Commonwealth v. Keiper, 887
A.2d 317 (Pa. Super. 2005)] sub silencio by categorizing prior
convictions as an element of persons not to possess) with
Jemison, 98 A.3d at 1262 (holding defendant did not suffer unfair
prejudice by admission into evidence of certified conviction to
prove prior conviction element of persons not to possess). As
McSorley’s prior conviction did not change the grade of his current
offense, we find that the trial court did not abuse its discretion by
including his prior conviction for escape in calculating his [prior
record score]. See id. Consequently, both his first and third
claims fail.
McSorley, 2019 WL 3306744, at *2.
This Court’s analysis in McSorley remains sound in this instance.
Jemison did not issue a ruling concerning the application of the Sentencing
Guidelines to a conviction for possession of a firearm by a prohibited person.
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In addition, Appellant’s prior conviction for possession of a controlled
substance with intent to deliver, like McSorley’s prior conviction for escape,
did not change the grade of his firearms offense. The conviction only provided
a factual predicate for the application of the offense under section 6105(a)(1).
See Commonwealth v. Keiper, 887 A.2d 317, 321 (Pa. Super. 2005)
(treating a prior burglary conviction as merely a precondition to a violation of
section 6105 that did not change the grading of Keiper’s conviction for
possession of a firearm by a prohibited person). Additionally, the prior drug
conviction could not constitute a factor for a double-counting error under 204
Pa. Code § 303.8(g)(3) because that section of the Sentencing Guidelines
plainly creates an exception for “Controlled Substances convictions.”
Defendant thus failed to prove an abuse of discretion through his unpreserved
claim alleging an improper double counting of sentencing factors.
Appellant failed to preserve his discretionary sentencing claim before
the trial court and, accordingly, waived it. Even if the claim was properly
preserved and reviewable, it failed to demonstrate that the imposition of
concurrent sentences within the standard range recommended by the
Sentencing Guidelines, following the trial court’s review of, inter alia, a pre-
sentence investigation report, was an abuse of discretion. See
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(combination of pre-sentence investigation report and standard range
sentence, absent more, cannot be considered excessive or unreasonable).
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2022
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