Com. v. Scott, A.

J. S66036/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALEXANDER SCOTT, : No. 2749 EDA 2017
:8:
Appellant :
Appeal from the Judgment of Sentence, July 20, 2017,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0003656-2015
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 04, 2019
Alexander Scott appeals from the July 20, 2017 judgment of sentence
entered by the Court of Common Pleas of Montgomery County following his
jury conviction of the following offenses: one count of corrupt organizations,
three counts of conspiracy, six counts of possession with intent to deliver,
four counts of criminal use of a communication facility, one count of
attempted murder, and two counts of firearms not to be carried without a
license. On July 20, 2017, the trial court sentenced appellant to an
aggregate term of 23½ to 59 years’ imprisonment. After careful review, we
affirm.
The trial court provided the following synopsis of the factual and
procedural history of this case:
J. S66036/18
A complaint was filed on March 3, 2015 charging
[appellant] with the events on March 2,
2015.[Footnote 9] On May 18, 2015, the case was
transferred to the Court of Common Pleas. On
July 1, 2015, the Commonwealth filed a notice of
joinder, joining [appellant]’s case with the cases
indexed at 3945-15, 3946-15, 3947-15, 3656-15,
and 3657-15. A second notice of joinder was filed on
July 16, 2015 joining additional cases indexed at
3655-15, 4787-15, 4788-15, 4789-15, 4790-15, and
4791-15. These cases were specially listed and the
first pretrial conference was scheduled for
September 1, 2, 3 and 10, 2015. On September 1,
2015 the Commonwealth filed a third notice of
joinder joining the cases indexed at 5275-15,
5274-15, 5273-15, 5272-15, 5271-15, 5270-15,
5269-15, 5268-15, 5267-15, 5266-15, 5265-15,
5264-15, 5261-15, and 5258-15. On September 10,
2015, Brendan Campbell, Esq., appeared at the
pretrial conference. Upon request of [appellant], the
case was placed on the court’s next trial list. On
September 23, 2015, attorney Campbell was
formally appointed. The case continued on a trial
track with monthly trial list dates, where neither
party requested a continuance and [appellant] did
not execute a Rule 600 waiver.
[Footnote 9] A second complaint was
filed on May 12, 2015 as a result of the
“Operation War Ready” investigation.
On October 30, 2015, the Bills of Information were
filed. At the November 12, 2015 trial list, counsel
orally joined in a Petition for a Writ of Habeas
Corpus.[Footnote 10] By Order of November 16,
2015 a hearing on the Petition for Habeas Corpus
was scheduled for November 30, 2015. On
November 30, 2015, the habeas corpus hearing was
continued to December 7, 2015. On December 7,
2015, the hearing was again continued. By order of
January 29, 2016, the hearing on [appellant]’s
Habeas Corpus Petition was schedule [sic]
February 22, 2016. The trial list order dated
February 5, 2016 indicates that the case is on a trial
-2-
J. S66036/18
track, with a tentative date certain the week of
April 18, 2016. By Order of February 22, 2016, the
hearing on [appellant]’s habeas corpus petition was
continued until March 8, 2016. On February 25,
2016, [appellant] filed a Petition for Bail
Reduction/Modification. By Order dated March 15,
2016, the court denied [appellant]’s Petition for a
Writ of Habeas Corpus. The case continued to have
monthly trial listings.
[Footnote 10] The record is unclear on
the exact date counsel orally joined the
petition. The Order scheduling the
hearing was dated November 16, 2015.
Thus, it follows that counsel likely joined
in the motion at the November 12, 2015
trial listing. At no time upon receipt of
scheduling orders did counsel indicate
that he did not wish to pursue the
habeas corpus petition and the petition
was in fact heard on March 8, 2016.
By order of August 16, 2016, trial was scheduled to
commence on October 17, 2016. On September 23,
2016, [appellant] filed a Motion to Dismiss Pursuant
to Rule 600, the motion was denied by Order of
September 28, 2016. At no time did [appellant] file
a Motion to Sever his case from that of any of the
joined cases or from Josiah Bailey, with whom he
was ultimately tried.
Trial commenced as scheduled on October 17, 2016.
Following eight days of testimony, the jury found
[appellant] guilty of Corrupt
Organizations[Footnote 11], Corrupt Organizations-
Conspiracy[Footnote 12], six counts of Possession of
a Controlled Substance with the Intent to
Deliver[Footnote 13], Conspiracy to Possession with
the Intent to Deliver[Footnote 14], four counts
Criminal Use of a Communication
Facility[Footnote 15], one count of Attempted
Murder[Footnote 16], Conspiracy to Commit
Murder[Footnote 17], and two counts of Firearms not
to be Carried Without a License.[Footnote 18] On
-3-
J. S66036/18
January 12, 2017, the court sentenced him to an
aggregate term of 25-60 years’ incarceration in a
State Correctional Institution, which included
consecutive sentences for Attempted Murder and
Conspiracy to Commit Murder. The court also
applied the Deadly Weapon Enhancement-Possessed
or Gang Enhancement to eligible counts.
[Footnote 11] 18 Pa. C.S.A. § 911(b)(3).
[Footnote 12] 18 Pa. C.S.A. § 911(b)(4).
[Footnote 13] 35 P.S. § 780-113(a)(30).
[Footnote 14] 18 Pa. C.S.A. § 903(a)(1).
[Footnote 15] 18 Pa. C.S.A. § 7512(a).
[Footnote 16] 18 Pa. C.S.A. § 901(a).
[Footnote 17] 18 Pa. C.S.A. § 903(a)(1).
[Footnote 18] 18 Pa. C.S.A. § 6101(a)(1).
On January 23, 2017, counsel filed a Post Sentence
Motion. A hearing on the Motion was scheduled for
April 23, 2017 and ultimately held May 1, 2017. At
the hearing on the motion, counsel raised the
additional claim that [appellant]’s sentence was
illegal insofar as he was sentenced on two inchoate
crimes which had the same object.[Footnote 19]
The Commonwealth was given an opportunity to
respond to that claim; it ultimately conceded the
sentence was illegal. By Order of May 17, 2017, the
Court vacated [appellant]’s sentence in its entirety.
[Footnote 19] “A person may not be
convicted of more than one of the
inchoate crimes of criminal attempt,
criminal solicitation or criminal
conspiracy for conduct designed to
commit or to culminate in the
commission of the same crime.”
18 Pa.C.S.A. § 906. [Appellant] was
convicted and sentenced on both
Attempted Murder and Conspiracy to
Commit Murder for his actions related to
Lazaro Morgalo.
On July 20, 2017, [appellant] was resentenced to an
aggregate term of 23½ to 59 years’ incarceration in
-4-
J. S66036/18
a State Correctional Facility. A timely notice of
appeal was filed. By Order of August 23, 2017,
[appellant]’s was directed to produce a Concise
Statement of Errors, Pursuant to Pa.R.A.P. 1925(b);
he has since complied with that directive.
Trial court opinion, 2/28/18 at 7-10
Appellant raises the following issues for our review:
1. Did the trial court err in denying Appellant’s
Rule 600 Speedy Trial Motion when the jury
trial commenced over three hundred and
sixty-five days (365) days after the filing of the
criminal case?
2. Did the trial court err in denying Appellant’s
Post-Sentence Motion for Judgment of
Acquittal and Motion for New Trial on the
charge of Attempted Murder?
3. Did the trial court manifestly abuse its
discretion in sentencing Appellant to
consecutive sentences and imposing sentence
enhancements that were not found by the jury
beyond a reasonable doubt?
Appellant’s brief at 8.
In his first issue for our review, appellant avers that the
Commonwealth violated his constitutional right to a speedy trial pursuant to
Pennsylvania Rule of Criminal Procedure 600.
“In evaluating Rule [600] issues, our standard of
review of a trial court’s decision is whether the trial
court abused its discretion.” Commonwealth v.
Hill, 736 A.2d 578, 581 (Pa. 1999). See also
Commonwealth v. McNear, 852 A.2d 401(Pa.Super. 2004). “Judicial discretion requires action
in conformity with law, upon facts and circumstances
judicially before the court, after hearing and due
consideration.” Commonwealth v. Krick, 67 A.2d
-5-
J. S66036/18
746, 749 (Pa.Super. 1949). “An abuse of discretion
is not merely an error of judgment, but if in reaching
a conclusion the law is overridden or misapplied or
the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is
abused.” Commonwealth v. Jones, 826 A.2d 900,
907 (Pa.Super. 2003) (en banc) (citing
Commonwealth v. Spiewak, 617 A.2d 696, 699
n.4 (Pa. 1992)).
“The proper scope of review . . . is limited to the
evidence on the record of the Rule [600] evidentiary
hearing, and the findings of the [trial] court.” Hill,
supra at 581; McNear, supra at 404. See also
Commonwealth v. Jackson, 765 A.2d 389(Pa.Super. 2000), appeal denied, 793 A.2d 905(Pa. 2002). “[A]n appellate court must view the
facts in the light most favorable to the prevailing
party.” Id. at 392.
....
In assessing a Rule 600 claim, the court must
exclude from the time for commencement of trial
any periods during which the defendant was
unavailable, including any continuances the
defendant requested and any periods for which he
expressly waived his rights under Rule 600.
Pa.R.Crim.P. 600(C). “A defendant has no duty to
object when his trial is scheduled beyond the Rule
[600] time period so long as he does not indicate
that he approves of or accepts the delay.”
Commonwealth v. Taylor, 598 A.2d 1000, 1003
(Pa.Super. 1991), appeal denied, 613 A.2d 559(Pa. 1992) (addressing Municipal Court’s counterpart
to speedy trial rule).
Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239, 1241 (Pa.Super.
2004) (en banc), appeal denied, 875 A.2d 1073 (Pa. 2005).
-6-
J. S66036/18
The comment to Rule 600 states that any delay in the proceedings
instrumentally caused by the defendant or the defense, including the
unavailability of the defendant, must be excluded for the purposes of
Rule 600. Pa.R.Crim.P. 600 cmnt. The court has previously held that a
defendant is considered unavailable for any period of time in which he or she
is unrepresented, absent a waiver of his or her right to counsel.
Commonwealth v. Anderson, 959 A.2d 1248, 1251 (Pa.Super. 2008).
The comment to Rule 600 further provides that “delay in the time of
trial that is attributable to the judiciary may be excluded from the
computation of time.” Pa.R.Crim.P. 600 cmt., citing Commonwealth v.
Crowley, 466 A.2d 1009 (Pa. 1983); see also Commonwealth v. Mills,
162 A.3d 323, 325 (Pa. 2017), citing Commonwealth v. Bradford, 46 A.3d
693, 705 (Pa. 2012) (“periods of judicial delay are excludible from
calculations under the rule”).
The trial court provided the following summary of the pre-trial delays
in this case:
A complaint was filed on March 3, 2015. At the first
pretrial conference, on September 10, 2015, counsel
appeared but was not formally appointed until
September 23, 2015. The 191 days between the
filing of the complaint and [] counsel’s appearance
on September 10, 2015 are excludable for purposes
of Rule 600, as [appellant] did not waive his right to
counsel. . . . The [trial] court was faced with the
herculean task of appointing private attorneys who
were not conflicted out of the case, which took place
at the first pretrial conference. This delay was
-7-
J. S66036/18
outside of the control of the Commonwealth and thus
excluded.
[C]ounsel orally joined in the request for a
habeas corpus hearing on or about November 12,
2015. Following multiple continuances based on
either the court’s schedule or defense requests to
review discovery, the hearing was ultimately held
[in] March [of] 2016 and an order denying the
Petition was entered on March [16, 2016.] Thus,
124 days are excludable or excusable based on the
filing of the habeas corpus petition. . . . When these
315 excludable/excusable days are added to the
mechanical run date of March 3, 2016, the adjusted
run date becomes January 12, 2017. Trial
commenced on October 17, 2016, well within the
adjusted run date. Any additional delay was caused
by the court’s calendar and the challenge of
scheduling a trial of this size.
Trial court opinion, 2/28/18 at 13-14 (footnotes omitted).
Here, we find that the trial court’s conclusions are based in the record
and that the trial court did not misapply or override the law when reaching
its conclusion. Therefore, we find that the trial court did not abuse its
discretion when it denied appellant’s Rule 600 motion.
In his second issue on appeal, appellant avers that the Commonwealth
failed to present sufficient evidence to warrant his conviction of attempted
murder. When determining whether the Commonwealth presented sufficient
evidence to justify a conviction, we are governed by the following standard:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record “in the light most favorable to the verdict
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
evidence.” Commonwealth v. Widmer, [] 744
-8-
J. S66036/18
A.2d 745, 751 ([Pa.] 2000). “Evidence will be
deemed sufficient to support the verdict when it
establishes each material element of the crime
charged and the commission thereof by the accused,
beyond a reasonable doubt.” Commonwealth v.
Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005).
Nevertheless, “the Commonwealth need not
establish guilt to a mathematical certainty.” Id.;
see also Commonwealth v. Aguado, 760 A.2d
1181, 1185 (Pa.Super. 2000) (“[T]he facts and
circumstances established by the Commonwealth
need not be absolutely incompatible with the
defendant's innocence”). Any doubt about the
defendant's guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that,
as a matter of law, no probability of fact can be
drawn from the combined circumstances. See
Commonwealth v. DiStefano, 782 A.2d 574, 582
(Pa.Super. 2001).
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence. See
Brewer, 876 A.2d at 1032. Accordingly, “[t]he fact
that the evidence establishing a defendant's
participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled
with the reasonable inferences drawn therefrom
overcomes the presumption of innocence.” Id.(quoting Commonwealth v. Murphy, 795 A.2d
1025, 1038–39 (Pa.Super. 2002)). Significantly, we
may not substitute our judgment for that of the fact
finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the respective
elements of a defendant's crimes beyond a
reasonable doubt, the appellant's convictions will be
upheld. See Brewer, 876 A.2d at 1032.
Commonwealth v. Franklin, 69 A.3d 719, 722-723 (Pa.Super. 2013),
quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-1075
(Pa.Super. 2013) (citations omitted).
-9-
J. S66036/18
Under the Crimes Code, “[a] person commits an
attempt when with intent to commit a specific crime,
he does any act which constitutes a substantial step
towards the commission of the crime.” 18 Pa.C.S.A.
§ 901(a). “A person may be convicted of attempted
murder ‘if he takes a substantial step toward the
commission of a killing, with the specific intent in
mind to commit such an act.’” Commonwealth v.
Dale, 836 A.2d 150, 152 (Pa.Super. 2003) (citation
omitted). See 18 Pa.C.S.A. §§ 901, 2502. “The
substantial step test broadens the scope of attempt
liability by concentrating on the acts the defendant
has done and does not any longer focus on the acts
remaining to be done before the actual commission
of the crime.” Commonwealth v. Gilliam, [] 417
A.2d 1203, 1205 ([Pa.Super.] 1980). “The mens
rea required for first-degree murder, specific intent
to kill, may be established solely from circumstantial
evidence.” Commonwealth v. Schoff, 911 A.2d
147, 160 (Pa.Super. 2006). “[T]he law permits the
fact finder to infer that one intends the natural and
probable consequences of his acts [.]”
Commonwealth v. Gease, [] 696 A.2d 130, 133
([Pa.] 1997).
Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal
denied, 967 A.2d 958 (Pa. 2009).
Here, the trial court reached the following determination pertaining to
the sufficiency of the evidence presented by the Commonwealth for
attempted murder:
Instantly, law enforcement received authorization to
wiretap [appellant’s] cellular telephone []. On
February 28, 2015, during the course of this
interception law enforcement listened, in real time,
as [appellant] planned to find and shoot Lazaro
Morgalo for allegedly robbing his little brother.
[(Notes of testimony, 10/24/16 at 94-96.)] In a
series of phone calls, [appellant] arranged a ride
from Reading, Berks County to Pottstown,
- 10 -
J. S66036/18
Montgomery County to carry out his plan. [(Id. at
98, 119).]
These intercepted communications show that
[appellant] was deliberately stalking his intended
victim, Lazaro Morgalo. When he first arrived in
Pottstown, he was scared off by the police presence
in the area of the homes associated with his rival
gang members. [(Id. at 111-112.)] He chose to
wait until it was dark out, and in calls after 9 p.m.
can be heard whispering as a crept through the
streets looking for Morgalo. [(Id. at 112, 127.)]
Fellow SCMG member, Jose Charriez, agreed to park
up the street and act as a getaway driver. [(Id. at
108-109.)] Evidence adduced at trial indicated that
the ‘big boy’ [appellant] indicated he was carrying is
a Tech-9 semi-automatic weapon. [(Id. at 113.)]
This evidence was sufficient to show that [appellant]
took a substantial step toward an intentional killing.
Trial court opinion, 2/28/18 at 15-16 (footnote omitted).
We find that the evidence noted by the trial court, when viewed in the
light most favorable to the Commonwealth, establishes each material
element of attempted murder beyond a reasonable doubt. Accordingly,
appellant’s second issue is without merit.
In his third and final issue, appellant contends that the trial court
abused its discretion by imposing consecutive sentences upon appellant and
by imposing sentencing enhancements that were not found by the jury
beyond a reasonable doubt. Upon review of appellant’s brief, he appears to
have abandoned his argument pertaining to the trial court’s enhancing his
sentence based on facts not found beyond a reasonable doubt by a jury.
- 11 -
J. S66036/18
Therefore, appellant’s appeal only challenges the discretionary aspects of his
sentence.
[T]he proper standard of review when
considering whether to affirm the
sentencing court’s determination is an
abuse of discretion. . . . [A]n abuse of
discretion is more than a mere error of
judgment; thus, a sentencing court will
not have abused its discretion unless the
record discloses that the judgment
exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias
or ill-will. In more expansive terms, our
Court recently offered: An abuse of
discretion may not be found merely
because an appellate court might have
reached a different conclusion, but
requires a result of manifest
unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.
The rationale behind such broad
discretion and the concomitantly
deferential standard of appellate review
is that the sentencing court is in the best
position to determine the proper penalty
for a particular offense based upon an
evaluation of the individual
circumstances before it.
[Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007)] (internal citations omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, 752 A.2d 910, 912
(Pa.Super. 2000). An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
- 12 -
J. S66036/18
[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).
Commonwealth v. Evans, 901 A.2d 528, 533
(Pa.Super. 2006), appeal denied, 909 A.2d 303(Pa. 2006) (internal citations omitted). Objections to
the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788,
794 (Pa.Super. 2003), appeal denied, 831 A.2d
599 (Pa. 2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828
(Pa.Super. 2007). A substantial question exists
“only when the appellant advances a colorable
argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of
the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing
process.” Sierra, supra at 912-913.
As to what constitutes a substantial question, this
Court does not accept bald assertions of sentencing
errors. Commonwealth v. Malovich, 903 A.2d
1247, 1252 (Pa.Super. 2006). An appellant must
articulate the reasons the sentencing court’s actions
violated the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).
- 13 -
J. S66036/18
Here, appellant’s brief contains a fatal defect as he has failed to
include a Rule 2119(f) statement. The Commonwealth raised an objection
to appellant’s failure to include a Rule 2119(f) statement. (See
Commonwealth’s brief at 48-49 n.10.) Accordingly, we do not have
jurisdiction to review appellant’s discretionary aspects of sentence claim on
its merits.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2019
- 14 -