Com. v. Freeman, M. A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW AMOS FREEMAN,
Appellant No. 2139 MDA 2014
Appeal from the Judgment of Sentence July 2, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002107-2012
BEFORE: BOWES, OTT and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 28, 2015
Matthew Amos Freeman appeals from the judgement of sentence of
fifteen to thirty months imprisonment after he was convicted of PWID and
possession of paraphernalia. We affirm.
On August 29, 2012, Waynesboro Police Detective Bryan Chappell
conducted an investigation in conjunction with the Franklin County Drug
Task Force into alleged drug trafficking in Waynesboro, Pennsylvania. N.T.,
5/30/14, at 18. The investigation began on August 20, 2012, after
Detective Chappell received information from the Pennsylvania State Police
that the occupants of 433 Hamilton Avenue had been purchasing large
quantities of growing equipment and material that was consistent with a
marijuana growing operation. Id. at 20. Detective Chappell testified that
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he arrived at the address around 4:00 a.m. and immediately smelled a
strong odor of fresh marijuana emanating from a large fifth-wheel-style
camper that was parked in the driveway.1 Id. An electrical extension cord
connected the camper to the residence. Id. at 21.
Detective Chappell left the scene, contacted two other members of the
task force, and returned with them to the home at 10:00 a.m. Id. at 22.
Again, he noticed the odor of marijuana emanating from the trailer. Id.
The officers knocked on the door to the camper but no one answered.
Detective Chappell walked over to the house and made contact with Teri
Rihel, the owner of the residence, and inquired if anyone lived in the
camper. Id. at 22, 48. Ms. Rihel told the officers that Appellant was living
in the camper, and after indicating that she did not have any keys to the
camper and could not let the officers inside, she helped them contact him.
Id. at 22, 25. Once Appellant exited the camper, the officers entered to
make sure that no one else was inside. Id. at 23. One officer remained on
the scene to secure Appellant and the evidence while Detective Chappell
obtained a search warrant. Id.
Upon his return, Detective Chappell executed the warrant and
searched the camper. Id. at 23-24. He testified that he believed the
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1
A fifth wheel camper is a trailer unit that connects to the tow vehicle by
way of a special hitch directly above the rear axle.
http://changingears.com/rv-sec-learn-type-fw.shtml
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camper had been used by Appellant to grow, dry, and store fresh marijuana
and also stated that the amount of marijuana seized from the camper
totaled 3.2 pounds. Id. at 26-38, 42. In addition, Detective Chappell found
devices used to smoke marijuana, a set of digital scales, racks to dry and
store fresh marijuana, a marijuana shredder, and eleven individually
wrapped bags of marijuana in a microwave. Id. at 27-28, 42. Each
individually wrapped bag weighed approximately one ounce, a common
weight at which marijuana is distributed. Id. at 65. The search also
revealed growing equipment such as lighting, ventilation, and water systems
for the marijuana plants. Id. at 52.
Jason Taylor, a detective with the Franklin County District Attorney’s
Office, testified as an expert witness for the Commonwealth and confirmed
Detective Chappell’s accounting of the weight of the individually wrapped
bags found in the microwave as well as the total seized amount of
marijuana. Id. at 77, 80. Detective Taylor also testified that Appellant
admitted to him during the interdiction that he had intended to deliver the
eleven one-ounce bags of marijuana to Ryan Dover, whom Detective Taylor
had previously investigated for drug crimes. Id. at 79, 86. Detective Taylor
opined that Appellant possessed the marijuana for distribution. Id. at 80.
Appellant declined to testify or call any witnesses, and a jury convicted
him of one count of PWID and one count of possession of drug
paraphernalia. The trial court imposed fifteen to thirty months incarceration
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for PWID and a concurrent term of six to twelve months for possession of
paraphernalia.2
Five days after trial, Appellant’s counsel filed a petition to withdraw
from this case and current counsel was appointed to represent him.
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2
Instantly, the trial court found that the mandatory minimum sentence of
twelve month’s imprisonment outlined in 18 Pa.C.S. § 7508(a)(1)(i) applied
in this case since the jury issued a special verdict that determined beyond a
reasonable doubt that Appellant possessed less than two but more than ten
pounds of marijuana. See N.T. Sentencing, 7/2/14, at 10-12.
Section 7508 is among several mandatory minimum sentencing
statues in Pennsylvania that this Court has determined to be unconstitutional
in their entirety under Alleyne v. United States, __ U.S. __, 133 S.Ct.
2151, 2155 (2013) (holding “any fact that increases the mandatory
minimum is an “element” that must be submitted to the jury.”). See
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc);
Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014). In
Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 2014), we opined that
§ 7508 would be unconstitutional even where, as here, a jury determined
the weight of the contraband beyond a reasonable doubt. Recently, in
Commonwealth v. Hopkins, No. 98 MAP 2013 (Pa. filed June 15, 2015),
our Supreme Court reaffirmed this general position regarding special
verdicts in relation to the mandatory minimum sentences entered pursuant
to 18 Pa.C.S. § 6317(a) concerning PWID within 1,000 feet of a school.
Notwithstanding the settled unconstitutionality of § 7508, we do not
vacate the judgment of sentence entered in the case at bar. Although the
trial court found § 7508 applicable in this case, the court did not impose the
mandatory minimum sentence of twelve months imprisonment. Instead, the
trial court imposed a standard range sentence of fifteen to thirty months
imprisonment based upon the offense gravity score and Appellant’s prior
record score. N.T, 07/02/14, at 12-13 (“[T]he court in its discretion under
what we believe are the correct guidelines for this circumstance[--] [t]hat is
a standard range of 12 to 18 months[--] imposed sentence of 15 [to 30]
months on count one.”). As the trial court imposed the judgment of
sentence based upon its discretion under the sentencing guidelines rather
than the constitutionally infirm statute, Appellant’s sentence is not illegal.
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Appellant filed a motion for post-sentence relief alleging that the jury’s
verdict was against the weight of the evidence presented at trial and
challenging the discretionary aspects of the judgment of sentence. The
latter claim asserted that the sentence was excessive in light of Appellant’s
rehabilitative needs, and therefore required a downward modification.
Appellant also asserted that he was eligible for the Recidivism Risk Reduction
Incentive Program (“RRRI”). 61 Pa.C.S. §§ 4501-4512. On December 15,
2014, the trial court denied all of the issues raised in the motion. As it
relates to RRRI, the trial court stated concluded that Appellant was
disqualified from entry into the RRRI program due to a 2002 misdemeanor
simple assault conviction in Texas. See Trial Court Opinion, 12/05/14, at
10.
A notice of appeal and concise statement of errors complained of on
appeal were subsequently filed with the Superior Court. Appellant presents
three issues for our review.
1. Was there insufficient evidence to conclude that the Appellant intended
to manufacture or deliver a controlled substance?
2. Did the trial court err in denying Appellant’s post sentence motion
because the jury’s verdict against the above-named Appellant was so
against the weight of the evidence as presented at trial so as to shock
one’s sense of justice?
3. Did the trial court abuse its discretion by imposing an unduly harsh
and unreasonable sentence because the trial court failed to consider
Appellant’s rehabilitative needs versus the public’s safety?
Appellant’s Brief at 7.
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First, Appellant challenges the sufficiency of the evidence that the
Commonwealth presented in support of its case against him. Id. at 22. He
argues that testimony given at trial by witnesses for the Commonwealth
failed to establish that he intended to deliver or manufacture a controlled
substance. Id.
When reviewing a sufficiency of the evidence claim, the Superior Court
must determine whether, after reviewing all of the trial evidence and
reasonable inferences that could be drawn in favor of the Commonwealth,
the jury could have found that each element of the offense was proven
beyond a reasonable doubt. Commonwealth v. Carpenter, 955 A.2d 411,
414 (Pa.Super. 1997). Instantly, Appellant challenges the PWID conviction.
In order to prove this offense, the Commonwealth must establish beyond a
reasonable doubt that the defendant possessed a controlled substance with
the specific intent or goal to deliver it to another. Commonwealth v.
Conaway, 791 A.2d 359 (Pa.Super. 2002); 35 Pa.C.S. § 780-113(a)(30).
In order to prove the requisite intent for delivery, the court may consider a
variety of relevant factors which include, “the manner in which the controlled
substance was packaged, the behavior of the defendant, the presence of
drug paraphernalia, and large sums of cash.” Commonwealth v.
Ratsamy, 934 A.2d 1233, 1237-1238 (Pa. 2007).
Appellant relies upon our Supreme Court’s ruling in Commonwealth
v. Keblitis, 456 A.2d 149 (Pa. 1983), to support his position that the
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Commonwealth failed to present sufficient evidence to sustain the jury
verdict. In Keblitis, the defendant’s conviction for PWID and manufacturing
marijuana was overturned after a court ruled that the fact that the police
observed the defendant performing work in a large garden that contained
marijuana, as well as many other types of plants, was insufficient to support
his conviction. Id. at 151. The court held that the police had presented no
evidence or testimony to show that the defendant had been performing
gardening duties for marijuana plants or that he was even aware of their
presence in the garden. Id. The court also concluded that the defendant’s
mere presence in the garden was not enough to support a conviction that he
was aware of the marijuana in the garden or the amount also found in the
house, due to the absence of proof that he actually resided there. Id.However, Keblitis is not helpful in this case because Appellant
unquestionably possessed the marijuana. The relevant question herein is
whether he possessed it with the required intent to distribute it in violation
of § 780-113(a)(30). For the following reasons, we find that the
Commonwealth adduced sufficient evidence of Appellant’s intent to deliver.
Expert testimony from a witness who is qualified in the field of drug
distribution may be sufficient to establish the intent to deliver.
Commonwealth v. Bull, 618 A.2d 1019, 1021 (Pa.Super. 1993), aff’d, 650
A.2d 874 (Pa. 1994). Detective Chappell testified that a search of the
camper yielded 3.2 pounds of marijuana. N.T., 5/30/14, at 20. Detective
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Chappell also considered the manner in which the marijuana was packaged,
stored, and displayed throughout the camper. Detective Chappell and the
other police officers executing the search warrant found a bathroom
converted into a storage area where the fresh marijuana was being dried on
silver screens, a tub that contained a large amount of marijuana, two digital
scales, a marijuana shredder, eleven individually wrapped bags of marijuana
(each of which weighed roughly one ounce), and numerous items and
personal effects demonstrating Appellant’s residency in the camper. Id. at
26-28, 30-34, 37-38.
During cross-examination, Detective Chappell testified that he had
arrested others in the past who have had larger amounts of marijuana on
them. Id. at 45. However, he explained that the quantity Appellant
possessed was consistent with drug trafficking and inconsistent personal
use. Id. at 46. He further conceded that he has been involved in cases
where both buyers and sellers have had scales on them to ensure that they
are getting the requested amount of marijuana. When questioned about the
totality of the circumstances and factors considered in deciding to charge
Appellant with PWID, Detective Chappell responded that the presence of the
fresh marijuana on the drying racks in the camper was particularly important
since:
If I was a marijuana user I would not purchase fresh marijuana.
Basically, it needs to be dried. If you were to purchase fresh marijuana
it will become moldy very quick and in a very short time it will be no
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good…That’s part of the process in manufacturing and preparing the
product for delivery.
Id. at 64-65.
The Commonwealth later called Detective Taylor as an expert in drug
trafficking and interdiction. While Appellant did not challenge detective
Taylor’s expertise, we observe that Detective Taylor is an eleven-year
veteran of various drug task forces, including of the FBI’s Capital City Safe
Street Task Force, and he encountered drug trafficking operations while
patrolling the Caribbean as a member of the United States Coast Guard. Id.
at 71-72.
When questioned by Appellant’s counsel, Detective Taylor stated that,
although it was possible, it was not in his experience that people who buy
marijuana would carry a scale with them. Id. at 85. Detective Taylor also
testified that the sheer quantity of marijuana which was seized, coupled with
the presence of the scales, and Appellant’s statement that he intended to
deliver the packaged marijuana to a local drug distributor whom Detective
Taylor had previously investigated, evinced the requisite intent. Id. at 79.
The Commonwealth clearly presented sufficient, if not overwhelming,
evidence to establish beyond a reasonable doubt that Appellant possessed
marijuana with intent to deliver. In addition to Detective Taylor’s testimony
that Appellant admitted that he intended to distribute the marijuana to a
local drug dealer, expert witness testimony established the presence of a
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large quantity of pre-packaged one-ounce bags of marijuana, equipment
used to prepare fresh marijuana for delivery, and two sets of digital scales
for weighing the contraband. Appellant’s claim fails.
Next, we address whether the conviction for PWID was against the
weight of the evidence.3 “A motion for a new trial alleging that the verdict is
against the weight of the evidence is addressed to the discretion of the
court. Appellate review, therefore, is a review of the exercise of discretion,
not the underlying question whether the verdict is against the weight of the
evidence.” Commonwealth v. Brown, 648 A.2d. 1177, 1189 (Pa. 1994).
An appellate court will only reverse a lower court’s verdict if “it is so contrary
as to shock one’s sense of justice.” Commonwealth v. Champney, 832
A.2d 403, 408 (Pa. 2003). Appellant argues that the trial court has abused
its discretion by failing to find his conviction to be against the weight of the
evidence.
Appellant’s main challenge to the weight of the evidence presented by
the Commonwealth centers on his argument that the testimony given by the
Commonwealth’s witnesses, Detectives Chappell and Taylor, regarding the
significance of the amount of marijuana, its packaging, and the presence of
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3
Although Appellant’s post-sentence motion arguably challenged the weight
of the evidence supporting his conviction for possession of paraphernalia, he
abandoned that claim in his brief in support of the post-sentence motion and
he does not resurrect the argument herein. Accordingly, we do not address
it.
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digital scales, was so riddled with inconsistencies as to render the jury’s
verdict in the Commonwealth’s favor something that would “shock one’s
sense of justice.” We reject this claim.
“A verdict is not contrary to the weight of the evidence because of a
conflict in testimony or because the reviewing court on the same facts might
have arrived at a different conclusion than the fact-finder.”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citing
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). Just because
the jury may have been able to find that the detectives’ statements
concerning similar equipment that they have discovered on both buyers and
sellers could have created a reasonable ambiguity as to whether Appellant
intended to deliver the marijuana does not require that they must find that
way.
Initially, we observe that Appellant fails to address, or even
acknowledge, the Commonwealth’s strongest evidence: Detective Taylor’s
testimony regarding Appellant’s admission that he intended to distribute the
marijuana to a known drug dealer. Furthermore, outside of some exposition
concerning statements made by the Commonwealth’s witnesses at trial,
regarding the possibility that a purchaser of marijuana could possess scales
and similar packaging materials, Appellant fails to elaborate on any alleged
“inconsistencies” in testimony. Moreover, he neglects to explain how the
purported inconsistencies overcome the weight of the remaining,
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uncontested evidence presented at trial. Determinations concerning the
relative credibility of witness testimony are properly for the jury to decide,
absent an abuse of discretion, and unless the evidence is clearly unreliable
or contradictory. Commonwealth v. McLean, 578 A.2d 4, 7 (Pa.Super.
1990). Herein, the jury credited the testimony of the Commonwealth’s
witnesses that Appellant was engaged in a marijuana enterprise. Thus, no
relief is due.
Next, we address Appellant’s claim that the trial court erred in failing
to determine his eligibility for the RRRI program. Appellant mistakenly
raised this argument as a component of his challenge to the discretionary
aspects of his sentence. Though not directly asserted, Appellant is
essentially arguing that the sentencing judge’s refusal to make him RRRI
eligible rendered his sentence illegal. This Court has previously held that a
defendant’s challenge to the court’s failure to impose the RRRI minimum
sentence is a non-waivable illegal sentencing claim. Commonwealth v.
Robinson, 7 A.3d 868, 871 (Pa. Super. 2010). Accordingly, we address
Appellant’s contention within the legality-of-sentence paradigm. As issues
relating to the legality of a sentence are questions of law, our standard of
review is de novo. Commonwealth v. Melius, 100 A.3d 682 (Pa.Super.
2014).
The RRRI program was designed to “ensure appropriate punishment
for persons who commit crimes.” 61 Pa.C.S. § 4502. An “eligible offender”
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for this program must satisfy certain criteria in order to qualify for it. 61
Pa.C.S. § 4503. The pre-requisites to enter the RRRI program require that
Appellant does not have: 1) a history of present or past violent behavior; 2)
a conviction with a sentence that included an enhancement for the use of a
deadly weapon; 3) a conviction or previous adjudication of delinquency for a
personal injury offense, except for third degree misdemeanor simple assault,
or an equivalent offense under the laws of another jurisdiction in the United
States or one of its territories; 4) a conviction or adjudication of delinquency
for any sexual offenses; and is not 5) awaiting trial or sentencing for
additional charges which would cause him to become ineligible for RRRI in
the future, or; 6) ever been sentenced according to mandatory minimums
for drug trafficking under Pa.C.S. § 7508(a)(1)(iii), 2(iii), 3(iii), 4(iii), 7(iii),
or 8(iii).4 61 Pa.C.S. § 4503 (1)-(6).
Sentencing courts are required to determine a defendant’s eligibility
for the RRRI program, and subject to one exception that does not apply to
this case, if a defendant is RRRI eligible, the court must impose an
alternative RRRI minimum sentence along with the minimum and maximum
terms of imprisonment that the court imposed as a matter of its sentencing
discretion under the Sentencing Code, 42 Pa.C.S. §§ 9701-9799.41.
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4
Appellant has in fact been previously found guilty of violating the
Controlled Substance, Drug, Device and Cosmetic Act, but he was never
sentenced pursuant to any of the above referenced statutes.
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Pursuant to the pertinent statute regarding the imposition of sentences of
total confinement,
The court shall determine if the defendant is eligible for a
recidivism risk reduction incentive minimum sentence under 61
Pa.C.S Ch. 45 (relating to recidivism risk reduction incentive). If
the defendant is eligible, the court shall impose a recidivism risk
reduction incentive minimum sentence in addition to a minimum
sentence and maximum sentence except, if the defendant was
previously sentence to two or more recidivism risk reduction
incentive minimum sentences, the court shall have the discretion
to impose a sentence with no recidivism risk reduction incentive
minimum.
42 Pa.C.S. § 9756(b.1).
In Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa.Super. 2014),
this Court found that a failure to impose an RRRI minimum sentence on an
eligible offender was a legal error. This has been previously recognized by
our own Supreme Court. “If the sentencing court concludes that a
defendant is eligible for an RRRI Act minimum sentence, or the prosecutor
has waived the eligibility requirements, then the court must impose the
minimum and maximum sentence as well as RRRI Act minimum sentence.”
Commonwealth v. Hansley, 47 A.3d 1180, 1187 (Pa. 2012) (emphasis
added).
Appellant argues that, since he is not disqualified from enrollment in
this program due to any of the foregoing provisions outlined in § 4503 (1)-
(6), the trial court was in error. Instantly, the issue of Appellant’s eligibility,
or lack thereof, was not addressed by either party or the trial court at
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sentencing. Appellant raised this issue for the first time in his post-sentence
motion. The trial court denied this aspect of the post-sentence motion on
the ground that Appellant’s conviction on July 24, 2002 for misdemeanor
simple assault in Texas disqualified him from eligibility. Trial Court Opinion,
12/05/14, at 10.
The determination whether the trial court erred in failing to find
Appellant RRRI eligible necessarily turns upon whether the Texas conviction
for misdemeanor simple assault is the equivalent of Pennsylvania’s simple
assault under 18 Pa.C.S. § 2701 (a) “when the offense is a
misdemeanor of the third degree.” 61 Pa.C.S. § 4503 (emphasis
added). In Pennsylvania, a third-degree misdemeanor is the lowest grade of
non-summary criminal offense. Pennsylvania grades simple assault as a
misdemeanor of the second degree unless it is committed in a fight or scuffle
by mutual consent. 18 Pa.C.S. § 2701(b). Under the narrow circumstances
of a fight by mutual consent, the offense is graded as a third-degree
misdemeanor, and therefore, it will not disqualify a person from RRRI
eligibility. § 2701(b)(1) (“a fight or scuffle entered into by mutual consent
. . . is a misdemeanor of the third degree”).
Texas law is incongruent. Pursuant to the Texas Penal Code, Class C
misdemeanors are the lowest grade of non-summary criminal offenses, and
all offenses that are designated misdemeanors without specification as to
punishment are considered to be Class C misdemeanors. See Tex., Penal
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Code Ann., § 12.03(b) (Vernon 2007). In that jurisdiction, a person
commits a simple assault graded as a Class C misdemeanor if he or she:
“intentionally or knowingly threatens another with imminent bodily injury,
including the person's spouse; or intentionally or knowingly causes physical
contact with another when the person knows or should reasonably believe
that the other will regard the contact as offensive or provocative.” Id. at §
22.01(a)(2-3) and (c).5
The two misdemeanor simple assault offenses are not equivalent. In
fact, the elements of the Class C misdemeanor for simple assault in Texas
align more closely with a simple assault graded as a second-degree
misdemeanor in Pennsylvania. Moreover, a fight by mutual consent, the
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5
The relevant section of the Texas Penal Code provides,
§ 22.01. Assault
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury
to another, including the person's spouse;
(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse;
....
(c) An offense under Subsection (a)(2) or (3) is a Class C
misdemeanor[.]
Tex., Penal Code Ann. § 22.01(a) and (c).
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only non-disqualifying form of simple assault for RRRI purposes, is not even
criminal in Texas provided that the defendant does not threaten or inflict
serious bodily injury. Indeed, Texas views a fight by mutual consent as a
qualified defense to simple assault. See id. at § 22.06 (“The victim's
effective consent or the actor's reasonable belief that the victim consented
to the actor's conduct is a defense to prosecution under Section 22.01
(Assault). . . . if . . . (1) the conduct did not threaten or inflict serious bodily
injury[.]”).
Thus, Appellant’s ungraded misdemeanor assault conviction in Texas
was not based on his participation in a fight or scuffle entered into by
consent as that conduct would have either been a defense to simple assault
under § 22.06 or, if he inflicted serious bodily injury, an aggravated assault
under § 22.02. As the two offenses cannot be viewed as equivalent, the trial
court did not err in holding that Appellant’s prior conviction for misdemeanor
simple assault in Texas rendered him RRRI ineligible.
Appellant’s final issue is that the trial court abused its discretion by
imposing a harsh and unreasonable sentence on him through a failure to
balance his rehabilitative needs, and other mitigating circumstances, with
the public’s safety. “The standard of appellate review of discretionary
aspects of sentencing is an abuse of discretion.” Commonwealth v.
Archer, 722 A.2d 203, 211 (Pa.Super. 1998). Instantly, Appellant argues
that the sentence was not appropriate because the trial court failed to
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impose an individualized sentence that considered the impact of the offense
on the public, his remorse, and his rehabilitative needs pursuant to §
9721(b).
Four prerequisites must be met before this Court will address the
merits of an appeal concerning the discretionary aspect of sentencing.
Commonwealth v. Lebarre, 961 A.2d 176, 178 (Pa.Super. 2008).
Pursuant to these requirements, an appellant must: (1) file a timely notice
of appeal; (2) raise the issue at sentencing or in a post sentence motion and
preserve it in a court-ordered Rule 1925(b) statement; (3) include a
statement of the reasons relied upon for the appeal in compliance with
Pa.R.A.P 2119(f),6 and; (4) present a substantial question that the sentence
appealed from is not appropriate under the sentencing code. Id.Instantly, Appellant’s notice of appeal was timely filed, the issue was
raised in his post-sentence motion and preserved in his Rule 1925(b)
statement. Appellant’s brief included a Pa.R.A.P 1925(b) statement setting
forth this issue and the reasons relied upon for his appeal. Finally, we
observe that Appellant’s contention presents a substantial question that the
sentence was inappropriate under the sentencing guidelines. See
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6
Pursuant to Pa.R.A.P 2119(f), “An Appellant who challenges the
discretionary aspects of a sentence of a criminal matter shall set forth in a
separate section of the brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of the
sentence.”
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Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa.Super. 2008) (claim
that sentencing court abused its discretion by failing to impose individualized
sentence due to failure to consider totality of circumstances raised
substantial question that required review). Thus, we address the merits of
Appellant’s discretionary sentencing claim.
Appellant argues that the trial court abused its discretion and imposed
an unreasonable sentence on him when he was given fifteen to thirty
months for PWID and six to twelve months for possession of drug
paraphernalia. As it stands, both of these sentences fall within the standard
range of the sentencing guidelines in light of Appellant’s prior record score
and the applicable offense gravity scores. The crux of Appellant’s contention
is that the trial court failed in its requirement to impose an individualized
sentence under 42 Pa.C.S. § 9721(b) by properly weighing the protection of
the public, the impact of the offense on the community, and rehabilitative
needs of the Appellant.
The following principles are relevant to our review. We must vacate a
sentence and remand to the sentencing court with instructions if we find
that:
1. The sentencing court purported to sentence in the guidelines but
applied the guidelines erroneously.
2. The sentencing court sentenced within the sentencing guidelines but
the case involves circumstances where the application of the guidelines
would clearly be unreasonable.
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3. The sentencing court sentenced outside the guidelines and the
sentence is unreasonable.
42 Pa.C.S. § 9781(c).
Sentences that fall within the standard range of the sentencing
guidelines are proper unless there are circumstances which render the
application of these guidelines clearly unreasonable. Commonwealth v.
Feucht, 955 A.2d 377, 384 (Pa.Super. 2008). Appellant’s argument
implicates the second aspect of the above-referenced provision. He relies on
several factors to establish that the totality of his personal life circumstances
make the length of his sentence too harsh, which he argues the trial court
failed to consider during sentencing.
Appellant asserts that the court neglected to consider that he was an
excellent student and only ten credits short of earning his Bachelors’ degree
from Penn State University when he was sentenced. Appellant also notes
that his father has been sick and that the trial court erred by failing to
consider what effect the length of sentencing would have in requiring that
his incarceration take place at a state institution that was much further away
from him than the county jail. In addition, Appellant argues that the trial
court erred by failing to take into account that the crimes of which he was
convicted had a minimal impact on the public and that he expressed remorse
for his actions during sentencing. Specifically, he asserts that, although his
prior record score is high, the impact of these particular crimes on the public
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was minimal because there was no evidence that he had ever tried to sell
marijuana to anyone in the public. Appellant asserts that the trial court’s
failure to properly consider these factors resulted in a failure to give him a
proper individualized sentence in accordance with § 9721(b).
The Commonwealth’s counterarguments center on the assertion that
the sentences imposed were appropriately within the standard range of the
sentencing guidelines. It asserts that Appellant’s high prior record score of
five, which included a prior conviction for PWID (marijuana), clearly
indicates that he is a recidivist. The Commonwealth highlighted that after
Appellant’s arrest during 2009 for the same offense, he had been sentenced
to six to twenty-three months in the Franklin County prison, and yet still
committed the identical crime shortly after he was released.
The record belies Appellant’s contention that the trial court did not
impose an individualized sentence. At the outset we observe that the trial
court reviewed a pre-sentence report. Hence it is presumed that the trial
court was aware of the relevant information regarding his character and
weighed its consideration appropriately. See Commonwealth v. Naranjo,
53 A.3d 66 (Pa.Super. 2012) (sentencing court’s decision to emphasize
certain factors over Appellant’s remorse and potential for rehabilitation did
not render sentence unreasonable). Moreover, as it relates to Appellant’s
contention that he was not going to place the drugs into public commerce,
there is no other way to characterize Appellant’s argument here than as
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J-S34013-15
completely disingenuous in light of the facts of the trial court record. As
noted supra, Detective Taylor testified unequivocally that Appellant admitted
to him that he intended to sell the bags of marijuana to a known drug
trafficker. N.T., 5/30/14, at 79.
Accordingly, for the forgoing reasons, we find the trial court did not
abuse its discretion in sentencing Appellant to fifteen to thirty months
imprisonment. Appellant acknowledges that both of his sentences are within
the standard range of the sentencing guidelines given his prior record and
the offense gravity scores. Moreover, in light of the fact that the certified
record verifies the trial court’s consideration of the relevant sentencing
factors, the court’s decision to emphasize certain factors over others was
within its purview of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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