Com. v. Luptak, R.

J-A14010-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT E. LUPTAK, JR. :
:
Appellant : No. 1481 WDA 2019
Appeal from the Judgment of Sentence Entered June 30, 2017
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0001073-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT E. LUPTAK, JR. :
:
Appellant : No. 1482 WDA 2019
Appeal from the Judgment of Sentence Entered June 30, 2017
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000902-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT E. LUPTAK, JR. :
:
Appellant : No. 1483 WDA 2019
Appeal from the Judgment of Sentence Entered June 30, 2017
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000512-2015
J-A14010-20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT E. LUPTAK, JR. :
:
Appellant : No. 1484 WDA 2019
Appeal from the Judgment of Sentence Entered June 30, 2017
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0001075-2014
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 23, 2020
In these consolidated appeals, Appellant, Robert E. Luptak, Jr., appeals
nunc pro tunc from the judgments of sentence entered on June 30, 2017, in
the Lawrence County Court of Common Pleas.1 After review, we affirm.
The record reveals that in the summer of 2014, Kellie Mars agreed to
work as an informant for the New Castle Police Department and the Lawrence
County Drug Task Force. N.T., 4/18/17, at 40-41. Ms. Mars testified that she
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1 Appellant filed a separate notice of appeal at each trial court docket number,
and each appeal was assigned a Superior Court docket number. Notices of
Appeal, 9/27/19; Notice of Appeal Docketing Letters, 10/3/19. On
October 17, 2019, this Court issued an order at each Superior Court docket
number directing Appellant to show cause why the four appeals should not be
consolidated. Orders, 10/17/19. In the orders, we noted that these matters
were consolidated and disposed of concurrently in the trial court. Id. On
October 21, 2019, Appellant filed four responses stating that he had no
objection to consolidation. Responses, 10/21/19. On October 28, 2019, this
Court sua sponte consolidated Appellant’s appeals. Order, 10/28/19.
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made five controlled purchases of oxycodone from Appellant. Id. at 44. As
a result of these controlled purchases, New Castle Police obtained a warrant
for Appellant’s arrest and a search warrant for Appellant’s residence. N.T.,
4/21/17, at 57-58. On October 23, 2014, the police executed the search
warrant. Id. at 59. When the police arrived at Appellant’s house, Appellant
walked outside and was taken into custody. Id. at 60. During their search of
Appellant’s house, the police discovered and seized cocaine, oxycodone pills,
marijuana, steroid tablets, handguns, rifles, shotguns, a compound bow, a
crossbow, other bows, more than $15,000 in United States currency, and
other items that were suspected “spoils of criminal activity.” Id. at 63-94;
Trial Court Opinion, 11/14/19, at 6. Some of the seized items were not related
to the search warrant, but they were later determined to be stolen. Trial Court
Opinion, 11/14/19, at 6. The police subsequently secured a second search
warrant based on the information revealing that the seized items were stolen.
Id.
The Commonwealth charged Appellant, inter alia, with numerous counts
of possession of a controlled substance with intent to deliver (“PWID”),
possession of a controlled substance (possession), criminal use of a
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communication facility, and receiving stolen property (“RSP”).2 Criminal
Informations, 11/26/14; 11/26/14; 6/30/15; and 3/30/17.3
On March 31, 2017, Appellant filed a suppression motion at each trial
court docket number. In his suppression motion, Appellant alleged that he
was not provided Miranda4 warnings prior to making oral statements to
police, the search exceeded the scope of the first search warrant, the search
warrants were not supported by probable cause, and he requested
suppression of all seized property. On April 18, 2017, the trial court denied
Appellant’s motion, and the case proceeded to a jury trial.
Following trial, the jury found Appellant guilty of all of the charged
offenses except one count of possessing drug paraphernalia. N.T., 6/28/17,
at 2. The trial court sentenced Appellant to an aggregate sentence of eleven
and one-half to twenty-three years of incarceration. Id. at 37. However, the
trial court stated that Appellant was eligible under the recidivism risk reduction
incentive (“RRRI”), 61 Pa.C.S. § 4501-4512. Id. Thus, if Appellant complied
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2 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 7512,
and 18 Pa.C.S. § 3925(a), respectively.
3 Prior to consolidation, a criminal information was filed at each trial court
docket number.
4 Miranda v. Arizona, 384 U.S. 436 (1966). Pursuant to Miranda, a criminal
suspect must be advised prior to interrogation that he has the right to remain
silent, anything he says can be used against him in a court of law, he has the
right to counsel, and if he cannot afford counsel, one will be appointed to
represent him. Commonwealth v. Yandamuri, 159 A.3d 503, 510 (Pa.
2017).
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with the terms of the RRRI, his minimum sentence could be reduced from
eleven and one-half to “8.916 years” years of incarceration. Id.On July 7, 2017, Appellant filed a post-sentence motion. On August 29,
2017, the trial court entered an amended sentencing order noting a
mathematical error and stating that Appellant’s RRRI minimum sentence was
nine years and seven months. Amended Sentencing Order, 8/29/17, at ¶3.5
On October 31, 2017, the trial court amended Appellant’s written sentencing
order with respect to the sentence imposed at trial court docket number CP-
37-CR-0000512-2015. Order, 10/31/17.6 The court clarified that one count
of PWID was mislabeled on the written order as a possession charge, and the
court amended the written sentencing order to conform with the criminal
information and the sentencing order provided at the time of sentencing. Id.On November 6, 2017, the trial court then denied Appellant’s post-sentence
motion. Appellant did not file a direct appeal.
On June 22, 2018, Appellant filed a timely pro se petition pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, and the
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5 Although the trial court corrected the sentencing order beyond the thirty
days provided by 42 Pa.C.S. § 5505, we note that no one has challenged the
correction of this facial error. Moreover, our Supreme Court has held that trial
courts retain the authority to correct patent errors beyond the thirty days
provided in Section 5505. Commonwealth v. Holmes, 933 A.2d 57, 67 (Pa.
2007). Because there was no objection to the correction of the sentencing
order, and because we conclude it does not impact the legality of Appellant’s
sentence or our jurisdiction, we continue with our disposition.
6 See footnote 5.
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PCRA court appointed counsel. Order, 10/4/18. Appellant subsequently
petitioned for the reinstatement of his direct-appeal rights, which the PCRA
court reinstated nunc pro tunc on February 28, 2019. On March 12, 2019,
Appellant filed his nunc pro tunc appeal to this Court. We quashed Appellant’s
appeal pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
because Appellant filed only one notice of appeal from the three trial court
dockets. Commonwealth v. Luptak, 402 WDA 2019, unpublished judgment
order (Pa. Super. filed September 4, 2019). However, this Court noted that
it was quashing Appellant’s appeal without prejudice to Appellant’s rights to
seek reinstatement of his appellate rights under the PCRA. Id. at 3. On
September 19, 2019, Appellant filed a second PCRA petition seeking the
restoration of his direct appeal rights, which was not opposed by the
Commonwealth, and the trial court granted the petition. Order, 9/19/19.
Thereafter, Appellant filed a separate notice of appeal at each trial court
docket. Both the trial court and Appellant complied with Pa.R.A.P. 1925.7
On appeal, Appellant raises four issues:
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7 Appellant filed a Pa.R.A.P. 1925(b) statement on March 26, 2019, and filed
an Amended Pa.R.A.P. 1925(b) statement on April 2, 2019. As noted, after
this Court quashed the first appeal, the trial court again reinstated Appellant’s
direct appeal rights. Appellant then filed separate notices of appeal on
September 27, 2019. The trial court did not order Appellant to file a new
Pa.R.A.P. 1925(b) statement, and instead relied on the March 26, 2019
Pa.R.A.P. 1925(b) statement and the April 2, 2019 Amended Pa.R.A.P.
1925(b) statement that Appellant filed in his initial nunc pro tunc appeal. Trial
Court Opinion, 11/14/19, at 3-4.
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I. Whether the trial court erred and abused its discretion in
denying Appellant’s post-sentence motions, by finding that the
jury’s verdict was based on evidence sufficient to sustain his
convictions beyond a reasonable doubt?
II. Whether the trial court erred and abused its discretion in
denying the Appellant’s motion to sup[p]ress evidence related to
two search warrants as well as an alleged statement or statements
made by Appellant after an alleged waiver of his Miranda rights?
III. Whether the trial court erred and abused its discretion in
denying Appellant’s post-sentence motions, by finding that the
jury’s verdict was not against the weight of evidence?
IV. Whether the trial court’s imposition of its sentences upon
Appellant raise a substantial question, as the reasons for the same
were not properly articulated, were in error, an abuse of
discretion, and unreasonable and manifestly excessive?
Appellant’s Brief at 11-12 (full capitalization omitted).8
In his first issue, Appellant purports to challenge the sufficiency of the
evidence. Appellant’s Brief at 38. However, both the trial court and the
Commonwealth contend that Appellant waived this issue. Trial Court Opinion,
11/14/19, at 13; Commonwealth’s Brief at 4. After review, we agree that
Appellant waived his challenge to the sufficiency of the evidence.
Our Court has held:
If Appellant wants to preserve a claim that the evidence was
insufficient, then [his Pa.R.A.P.] 1925(b) statement needs to
specify the element or elements upon which the evidence was
insufficient. This Court can then analyze the element or elements
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8 We have renumbered Appellant’s issues so that we may first address
Appellant’s challenge to the sufficiency of the evidence. We do so “[b]ecause
a successful sufficiency of the evidence claim warrants discharge on the
pertinent crime[.]” Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super.
2013) (en banc).
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on appeal. [Where a Pa.R.A.P.] 1925(b) statement does not
specify the allegedly unproven elements[,] ... the sufficiency issue
is waived [on appeal].
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008),
quoting Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa. Super.
2007).
In Appellant’s Pa.R.A.P. 1925(b) statement and his Amended Pa.R.A.P.
1925(b) statement, he merely alleged in boilerplate fashion that the evidence
was insufficient to sustain all of his convictions. Pa.R.A.P. 1925(b) Statement,
3/26/19, at ¶3; Amended Pa.R.A.P. 1925(b) Statement, 4/2/19, at ¶3.
Appellant failed to specify any element upon which the evidence was
insufficient. Therefore, Appellant’s challenge to the sufficiency of the evidence
is waived on appeal. Williams, 959 A.2d at 1257.
Next, Appellant presents two challenges to the trial court’s denial of his
suppression motion. He first asserts that the police seized personal property
from his house that was outside the scope of the first search warrant.
Appellant’s Brief at 22-31. Secondly, Appellant avers that the police
questioned him without informing him of his rights as required by Miranda.
Id. at 31-38.
We review the denial of a motion to suppress under the following
parameters:
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of a
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suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record. ...
Where the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). “It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.
2006). Moreover, our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. In re
L.J., 79 A.3d 1073, 1087 (Pa. 2013).
Appellant asserts that the first search warrant permitted the police to
enter his house and look for items related to drug trafficking and the drug
trade. Appellant’s Brief at 23. However, he claims that when the police seized
cross bows, tools, personal items, and other property which had no “indicia of
an incriminating nature,” the officers exceeded the scope of the first search
warrant. Id. at 23-24. After review, we conclude that no relief is due.
The trial court resolved this issue applying the rules of “inevitable
discovery” and “plain view,” and it addressed Appellant’s claim of error as
follows:
[Appellant’s] first-stated error complained of on appeal is
that this court erred when it admitted evidence obtained based on
a sealed search warrant issued on October 22, 2014, and executed
on [Appellant’s] home on October 23, 2014.
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On October 22, 2014, the Commonwealth obtained a search
warrant to search [Appellant’s] residence at 218 W. Winter
Avenue, New Castle, Lawrence County Pennsylvania. On October
23, 2014, at 1:30 PM, the warrant was executed.
During the execution of the warrant, Officer Joshua Covert
of the New Castle Police Department identified a bow that he
reported stolen from his vehicle. Numerous tools and other items
which were not listed as items to be seized were seized from 218
W. Winter Avenue as spoils of criminal activity.
Based on a review of the October 22nd Warrant, many of
the items seized during the execution of the first warrant did not
fall into any of the ten stated categories of items to be searched
and seized pursuant to the first warrant.
Of the ten authorized subjects of the search, the closest
provision to the items seized is the ninth provision of the warrant,
which allows for the seizure of “receipts of items evidencing the
expenditure of the proceeds of drug distribution...[.]” A precise
reading of this provision does not allow for the seizure of the
actual items evidencing the expenditure of the proceeds of drug
distribution. Only the receipts of these items were authorized for
seizure.
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures, thereby
ensuring the “right of each individual to be let alone.” Com. v.
Campbell, 862 A.2d 659[, 663] (Pa. Super. 2004).
Normally, the search being outside the scope authorized by
the warrant would trigger exclusion of the evidence. In the present
case however, the doctrines of plain view and inevitable discovery
apply.
“The scope of a lawful search pursuant to a warrant is
defined by the object of the search and the places in which there
is probable cause to believe that it may be found.” Com. v. Taylor,
771 A.2d 1261, 1265-66 (Pa. 2001) (citations and quotations
omitted). “It is permissible to seize things other than those
described in the search warrant if they have a reasonable relation
to the purpose of the search[”] and are the fruits of crime, such
as stolen property.[] Com v. Gannon, 454 A.2d 561, 565 (Pa.
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Super. 1982) (notations omitted). Further, a warrant is not
necessary where evidence comes to an officer’s “attention by
virtue of being in plain sight.” Com. v. Bowers, 274 A.2d 546, 547
(Pa. Super. 1970) (citations omitted); see also Com. v. Anderson,
40 A.3d 1245, 1248 (Pa. Super. 2012).
The plain view doctrine applies if 1) police did not violate
the Fourth Amendment during the course of their arrival at the
location where they viewed the item in question; 2) the item was
not obscured and could be seen plainly from that location; 3) the
incriminating nature of the item was readily apparent; and 4)
police had the lawful right to access the item. Thus, police
executing a valid search warrant may seize items not listed in the
warrant if their incriminating nature is immediately apparent.
Com. v. Harvard, 64 A.3d 690, 698 (Pa. Super. 2013).
Officer Covert’s bow falls under the plain view exception.
A significant number of tools and other items were seized
from the home whereby the incriminating nature of the items was
not immediately apparent.
Upon the completion of the execution of the warrant,
Corporal Richard Conti checked with the New Castle Police
Department Detective Bureau and reviewed stolen goods reports.
Corporal Conti in his application for a warrant on October 24,
2014, noted many of the items remaining in the residence
matched the descriptions of items in the theft reports.
Evidence which would have been inevitably discovered is
sufficiently purged of the original illegality to allow admission of
the evidence. [Com. v. Gonzalez, 979 A.2d 879, 890 (Pa. Super.
2009).] Implicit in this doctrine is the fact that the evidence would
have been discovered despite the initial illegality. [Id.] 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, the evidence is admissible. [Id.]
“The purpose of the inevitable discovery rule is to block setting
aside convictions that would have been obtained without police
misconduct.” [Id. at] 890 (Pa. Super. 2009) (quoting Nix v.
Williams, 467 U.S. 431, 444 n. 4 (1984).
The items seized prior to the execution of the second
warrant were outside the scope of the first warrant. However, on
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the basis of the discovery of Officer Covert’s stolen bow inside 218
W. Winter Avenue, Corporal Conti or another officer would more
likely than not have still reviewed theft reports for items matching
the descriptions of items found in the home. In addition, during
the interrogation of [Appellant], which occurred prior to the
execution of the second warrant, [Appellant] was questioned
about his practices regarding purchasing these tools. When asked
if [Appellant] had exchanged drugs for tools, he told the
interviewing officers he did.2
2Commonwealth’s Exhibit 2, Pretrial hearing April 10,
2017.
Lastly, the mere oversight of excluding derivative
contraband from the listed scope of the warrant is not the sort of
police misconduct the exclusionary rule is designed to protect
against. The exclusionary rule is aimed at official misconduct.
Com. v. Corley, 491 A.2d 829, 834 (Pa. 1985).
It was inevitable that the items improperly seized during the
execution of the first warrant would have been properly seized
during the execution of the second warrant based on the probable
cause gained through the discovery of Officer Covert’s bow as well
as the review of theft reports and the probable cause the police
already had in order to receive the first warrant.
Trial Court Opinion, 11/14/19, at 6-9.
We agree with the trial court. The police executed a legal search warrant
and lawfully entered Appellant’s house. Once inside, the officers seized items
that were enumerated in the search warrant and seized items that they
suspected were stolen but were outside the scope of the warrant. The officers
were under no obligation to ignore an item in plain sight if its criminal nature
was immediately apparent. Moreover, because the police suspected that the
items discovered in Appellant’s house were the fruit of a criminal enterprise,
they reviewed the stolen property reports, confirmed that the items outside
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the scope of the warrant were in fact stolen, and on this basis, executed the
second search warrant. Thus, even if the criminal nature of an item, which
was in plain sight, was not immediately apparent, the items would have been
discovered inevitably after officers reviewed the stolen property reports. For
these reasons, we conclude that the seized items that were outside the scope
of the initial warrant inevitably would have been discovered, and we discern
no error in the trial court denying Appellant’s suppression motion based on
the doctrines of inevitable discovery and plain sight. Bowers, 274 A.2d at
547; Harvard, 64 A.3d at 698; and Gonzalez, 979 A.2d at 890.
Next, Appellant asserts that the trial court should have suppressed
statements Appellant made to police because the officers did not provide
Appellant his Miranda warnings. Appellant’s Brief at 31. After review, we
discern no error.
Appellant’s argument is based on his assertion that his testimony from
the suppression hearing was more credible than the testimony given by the
police officers. Appellant’s Brief at 31-37. However, as set forth above, the
credibility of the witnesses testifying at the suppression hearing and the
weight to be given their testimony is left to the trial court as the factfinder.
Gallagher, 896 A.2d at 585. The trial court disposed of this issue as follows:
By Order of April 18, 2017, this court declined to suppress
statements made by [Appellant] to police on October 23, 2014, as
it found [Appellant] had waived his Miranda rights.
The issue of argument came down to the fact that the
Miranda waiver form was initialed ‘yes’ to the question indicating
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whether [Appellant] wished to make a statement. No written
statement was ultimately made.
The Commonwealth offered the testimony of
Detective Thomas Costa and Corporal Richard Conti who were
present for the interrogation. The Officers testified they spoke
with [Appellant], and after some preliminary conversation where
the investigation was not discussed, they presented him with a
Miranda waiver form and determined if he wished to make a
statement. The Officers testified [Appellant] did wish to make a
statement, but he only wished to make an oral statement, which
was why the form was checked yes but was not accompanied by
a written statement.
According to [Appellant], the District Attorney led the
interrogation rather than Detective Costa and Officer Conti.
[Appellant] claimed he was not made aware of his right to remain
silent during the interrogation and was presented with the Miranda
waiver form only after he made statements to police. When
[Appellant] was given the Miranda waiver form, he was told he
had already given a statement, and he might as well initial the
question stated he desired to give a statement because he already
gave one. [Appellant] then initialed the line saying he desired to
make a statement.
This court, sitting as the suppression court, found the
Officers credible due to the granular detail of which appeared in
each officer’s testimony despite neither seeing the testimony of
the other.
This court did not find the testimony of [Appellant] credible.
Where a motion to suppress has been filed, the, burden is
on the Commonwealth to establish by a preponderance of the
evidence that the challenged evidence is admissible. Com. v.
Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004). The role of the
suppression court includes the responsibility of making credibility
determinations. Com. v. Gallagher, 896 A.2d 583, 585 (Pa.
Super. 2006).
The question of the admission of the post-waiver statements
is solely one of credibility. This court found the testimony of
Detective Cota and Officer Conti credible, and did not find
[Appellant] credible. The Miranda waiver form was initialed by
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[Appellant] next to the statement: “I wish to make a statement.”1
This determination directly results in the conclusion [Appellant]
waived his Miranda rights. As such, the statements made by
[Appellant] to the police are admissible.
1 Commonwealth’s Exhibit 3, Pretrial hearing April 10, 2017.
Trial Court Opinion, 11/14/19, at 4-6.
As we stated previously, it was within the sole province of the trial court
to determine the credibility of the witnesses and the weight to be given their
testimony. Gallagher, 896 A.2d at 585. At the suppression hearing, the trial
court heard testimony from Detective Costa, Corporal Conti, and Appellant.
The trial court concluded that Detective Costa and Corporal Conti testified
credibly concerning Appellant’s waiver of his Miranda rights and his
willingness to provide a statement. Conversely, the trial court did not find
Appellant’s version of events credible. Accordingly, pursuant to our scope and
standard of review, we discern no error in the trial court’s finding that
Appellant waived his right to remain silent and denying Appellant’s
suppression motion.
In his third issue, Appellant avers that the trial court erred in denying
Appellant’s post-sentence motion for a new trial in which he asserted that the
verdict was against the weight of evidence. Appellant’s Brief at 45; Post-
sentence Motion, 7/7/17, at ¶¶12-13. After review, we conclude that no relief
is due.
Our Court has held that “[a] motion for [a] new trial on the grounds that
the verdict is contrary to the weight of the evidence, concedes that there is
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sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153
A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer,
744 A.2d 745, 751 (Pa. 2000)). Our Supreme Court has described the
standard applied to a weight-of-the-evidence challenge as follows:
The decision to grant or deny a motion for a new trial based
upon a claim that the verdict is against the weight of the evidence
is within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
court’s decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one’s sense of justice.”
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations
omitted).
A trial court’s determination that the verdict was not against the weight
of the evidence is “[o]ne of the least assailable reasons” for denying a new
trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super. 2016)
(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A verdict
is against the weight of the evidence where “certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.
Super. 2003) (quoting Widmer, 744 A.2d at 751-752)). However, “we do
not reach the underlying question of whether the verdict was, in fact, against
the weight of the evidence.... Instead, this Court determines whether the
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trial court abused its discretion in reaching whatever decision it made
on the motion[.]” Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa.
Super. 2015) (citation omitted) (emphasis added).
Appellant’s argument on this issue is lacking. Appellant dedicates four
pages of his brief to setting forth the standards for a litigant to preserve and
for the courts to decide a challenge to the weight of the evidence. Appellant’s
Brief at 45-48. He then provides one paragraph of argument. Id. at 49. The
crux of Appellant’s challenge is that the testimony provided by the defense
witnesses, when considered in conjunction with Appellant’s cross-examination
of the Commonwealth’s witnesses, establishes that the verdict was against
the weight of the evidence. Id. However, this Court will not reweigh the
testimony, and we will not substitute our judgment for that of the factfinder;
the jury is free to believe some, all, or none of the evidence presented and to
determine the credibility of the witnesses at trial. Commonwealth v.
Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017) (citation omitted). The
jury chose to credit the testimony of the Commonwealth’s witnesses, as it was
free to do. Id. After review, there is nothing about the trial court’s denial of
Appellant’s post-sentence motion that leads us to conclude that there was an
abuse of discretion. Accordingly, Appellant is entitled to no relief with respect
to his challenge to the weight of the evidence.
In his final issue, Appellant asserts that the trial court abused its
discretion in imposing Appellant’s sentence. Appellant argues that his
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sentence was unreasonable and manifestly excessive, and that the trial court
failed to provide the reasons for the sentence it imposed. Appellant’s Brief at
49-50.
Appellant’s issue presents a challenge to the discretionary aspects of his
sentence. It is well settled that a challenge to the discretionary aspects of a
sentence is a petition for permission to appeal, as the right to pursue such a
claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 599
(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this
Court’s jurisdiction when challenging the discretionary aspects of a sentence,”
by (1) preserving the issue in the court below, (2) filing a timely notice of
appeal, (3) including a Rule 2119(f) statement, and (4) raising a substantial
question for our review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa.
Super. 2015) (citation omitted); Commonwealth v. Austin, 66 A.3d 798,
808 (Pa. Super. 2013).
In the instant case, Appellant preserved his challenge to the
discretionary aspects of his sentence in his post-sentence motion, Post-
sentence Motion, 7/7/17, at ¶¶14-15, and as we discussed above, Appellant
filed a nunc pro tunc appeal. Notices of Appeal, 9/27/19. Moreover, Appellant
included in his brief a concise statement of the reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 7-11.
Therefore, we must determine whether Appellant has raised a substantial
question.
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The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will allow the appeal only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code,
or (2) contrary to the fundamental norms which underlie the sentencing
process. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015). “Our inquiry must focus on the reasons for which the appeal is sought,
in contrast to the facts underlying the appeal, which are necessary only to
decide the appeal on the merits.” Commonwealth v. Knox, 165 A.3d 925,
929 (Pa. Super. 2017) (quoting Commonwealth v. Tirado, 870 A.2d 362,
365 (Pa. Super. 2005)).
Appellant alleges that although the individual sentences were in the
standard range of the Sentencing Guidelines, the aggregate sentence of
eleven and one-half to twenty-three years of incarceration was unreasonable
and manifestly excessive due to the consecutive nature of the sentences
imposed. Appellant’s Brief at 7-11.9 We conclude that Appellant has
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9 Appellant also presents a novel argument that “the Commonwealth could
have satisfied its prosecutorial goal with two controlled buys, instead of five
controlled buys.” Appellant’s Brief at 52-53, 55. Appellant claims that
charging and sentencing Appellant for five separate criminal transactions was
excessive. Id. at 55-56. However, Appellant has not cited, nor does our own
research reveal, any authority that addresses the duration of a criminal
investigation as a sentencing issue. Whether the Commonwealth could have
achieved its prosecutorial goals by arresting Appellant after two controlled
buys is not properly before this Court. Appellant did not challenge the number
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presented a substantial question. See Commonwealth v. Dodge, 77 A.3d
1263, 1270 (Pa. Super. 2013) (“[A] defendant may raise a substantial
question where he receives consecutive sentences within the guideline ranges
if the case involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence[.]”).
Accordingly, we conclude that Appellant satisfied the four-part test set forth
in Tejada, and we may address the merits of Appellant’s challenge to the
discretionary aspects of his sentence.10
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of arrests or counts in the criminal information in his omnibus pretrial motion
pursuant to Pa.R.Crim.P. 578. Appellant’s cases proceeded to trial, he was
convicted, and he was sentenced on the crimes set forth in the criminal
informations arising from the five controlled buys and search of his home. Any
challenge to the number of controlled buys or the contents of the information
is waived due to Appellant’s failure to raise it in the trial court. 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”); see also Commonwealth v. Jackson, 215
A.3d 972, 977-978 (Pa. Super. 2019) (holding appellant waived challenge to
amendment to criminal information where he failed to articulate specific
objection at appropriate stage of proceedings before trial court).
10 The Commonwealth appears to argue that Appellant was required to file a
petition for allowance of appeal pursuant to 42 Pa.C.S. § 9781 that was
separate from the appeal generally. Commonwealth’s Brief at 10-11. This is
inaccurate, and we note the following:
Where a challenge is raised to the appropriateness of the
discretionary aspects of a sentence, the “petition for allowance of
appeal” specified in 42 Pa.C.S. § 9781(b) is deferred until the
briefing stage, and the appeal is commenced by filing a notice of
appeal pursuant to Chapter 9 rather than a petition for allowance
of appeal pursuant to Chapter 11.
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“[S]entencing 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.” Commonwealth v. Sheller, 961 A.2d 187,
190 (Pa. Super. 2008). An abuse of discretion is not merely an error in
judgment; rather, an appellant must establish that the trial court ignored or
misapplied the law, exercised its judgment for reasons of partiality, prejudice,
bias, or ill will, or reached a manifestly unreasonable decision. Id.The trial court sentenced Appellant as follows:
Trial court docket number CP-37-CR-0001073-2014: Count 1
(PWID), nine to eighteen months of incarceration; and Count 2 (possession),
merges/no further penalty. N.T., 6/28/17, at 31-32.
Trial court docket number CP-37-CR-0001075-2014: Count 1
(RSP), three to six months of incarceration. N.T., 6/28/17, at 32. This
sentence was ordered to be served consecutively to the sentence at trial court
docket number CP-37-CR-0001073-2014. Id. at 32-33.
Trial court docket number CP-37-CR-0000512-2015: Count 1
(PWID), no further penalty; Count 2 (PWID), nine to eighteen months of
incarceration; Count 3 (RSP), twelve to twenty-four months of incarceration;
Count 4 (RSP), twelve to twenty-four months of incarceration; Count 5 (RSP),
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Pa.R.A.P. 2119, Note. As stated above, in order to petition this Court for
allowance of appeal from the discretionary aspects of one’s sentence, an
appellant must comply with the factors set forth in Tejada, 107 A.3d at 797.
An additional and separate petition is not required.
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three to six months of incarceration; Count 6 (RSP), three to six months of
incarceration; Count 7 (possession), merges/no further penalty; Count 8
(possession), merges/no further penalty; Count 9 (possession), merges/no
further penalty; Count 10 (possession), merges/no further penalty; Count
1211 (PWID), forty-two to eighty-four months of incarceration; Count 13
(possession), merges/no further penalty; and Count 14 (RSP), twelve to
twenty-four months of incarceration. N.T., 6/28/17, at 33-35. The trial court
ordered the sentences at this docket number to be served consecutively to
each other and consecutively to the sentences at trial court docket numbers
CP-37-CR-0001073-2014 and CP-37-CR-0001075-2014. Id. at 35.
Trial court docket number CP-37-CR-0000902-2015: Count 1
(PWID), nine to eighteen months of incarceration; Count 2 (PWID), six to
twelve months of incarceration; Count 3 (PWID), nine to eighteen months of
incarceration; Count 4 (PWID), nine to eighteen months of incarceration;
Count 5 (criminal use of a communication facility), no further penalty; Count
6 (criminal use of a communication facility), no further penalty; Count 7
(criminal use of a communication facility), no further penalty; Count 8
(criminal use of a communication facility), no further penalty; Count 9
(possession), merges/no further penalty; Count 10 (possession), merges/no
further penalty; Count 11 (possession), merges/no further penalty; and Count
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11 The trial court noted that Appellant was found not guilty on Count 11. N.T.,
6/28/17, at 34.
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12 (possession), merges/no further penalty. N.T., 6/28/17, at 35-37. The
trial court ordered the sentences at this docket number to be served
consecutively to each other and consecutively to the sentences at trial court
docket numbers CP-37-CR-0001073-2014, CP-37-CR-0001075-2014, and CP-
37-CR-0000512-2015. Id. at 37. This resulted in an aggregate sentence of
eleven and one-half to twenty-three years of incarceration. However, the trial
court stated that Appellant was eligible under the recidivism risk reduction
incentive (“RRRI”), 61 Pa.C.S. § 4501-4512. Id. Thus, if Appellant complied
with the terms of the RRRI, his minimum sentence could be reduced to nine
years and seven months of incarceration. Amended Sentencing Order,
8/29/17, at ¶3. Moreover, the trial court stated that it reviewed Appellant’s
presentence investigation report, considered all relevant factors, provided its
reasons for the sentences imposed, and concluded that consecutive sentences
were appropriate. N.T., 6/28/17, at 31, 41; see also Sentencing Orders,
6/30/17, at 1, 2 (stating that there was an undue risk that during a period of
probation or partial confinement that Appellant would reoffend and that a
lesser sentence would depreciate the seriousness of Appellant’s crimes).
Appellant concedes that the sentences were within the standard range
of the Sentencing Guidelines. Appellant’s Brief at 55.12 However, Appellant
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12 We note that even Appellant’s longest individual sentence of forty-two to
eighty-four months of incarceration was in the standard range of the
Sentencing Guidelines. 204 Pa. Code § 303.16(a).
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asserts that he should have received a lesser sentence because his prior
record score was only “one,” and the quantity of controlled substances he
possessed was minimal as were the number of sales. Id.After review, it is evident that the duration of Appellant’s aggregate
sentence is due to the number of crimes combined with the trial court’s
directive that the sentences must be served consecutively. We reiterate, “[A]
defendant may raise a substantial question where he receives consecutive
sentences within the guideline ranges if the case involves circumstances
where the application of the guidelines would be clearly
unreasonable, resulting in an excessive sentence[.]” Dodge, 77 A.3d
at 1270 (emphasis added). As noted, Appellant was found guilty of twenty-
eight separate crimes, many of which were felonies. N.T., 6/28/17, at 31-37.
The trial court provided reasons for its sentences and imposed standard-range
sentences on fourteen crimes, found that ten crimes merged for sentencing
purposes, and imposed no further penalty on four counts of criminal use of a
communication facility, each of which was graded as a third-degree felony.
Id. at 31, 35-36, and 41. The aggregate sentence is due to the voluminous
number of convictions and the consecutive nature of the sentences imposed.
However, the imposition of consecutive, rather than concurrent sentences is
within the sound discretion of the trial court. Commonwealth v. Moury, 992
A.2d 162, 171-172 (Pa. Super. 2010). Moreover, it is well settled that a
defendant is not entitled to a “volume discount” for his crimes by having his
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sentences run concurrently. Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa. Super. 1995). Under the circumstances presented in the instant case,
we cannot conclude that Appellant’s aggregate sentence is unreasonable and
excessive. Accordingly, we find no abuse of discretion in the sentence the
trial court imposed.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Therefore, we affirm the judgments of sentence.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2020
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