Com. v. Medgebow, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY MEDGEBOW :
:
Appellant : No. 990 EDA 2021
Appeal from the Judgment of Sentence Entered February 25, 2021,
in the Court of Common Pleas of Montgomery County,
Criminal Division at No(s): CP-46-CR-0000387-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 13, 2021
Jeffrey Medgebow appeals from the judgment of sentence imposed after
the trial court found him guilty of possession of a controlled substance and
possession with intent to deliver (“PWID”).1 Upon review, we affirm.
The facts and procedural history are as follows. Between August and
December 2017, police met with several confidential sources who reported
that Medgebow was involved in the sale of various controlled substances in
Philadelphia and Montgomery counties. They also learned that Medgebow was
registered to Room 811 of the Home2 Suites Hotel located on Arch Street in
Philadelphia, Pennsylvania.
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(16) and (a)(30).
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In December 2017, the police conducted two controlled buys, one in
Philadelphia and one in Upper Merion, using a confidential informant. On both
occasions, the CI met with Medgebow and purchased crystal
methamphetamine directly from Medgebow. After each transaction, the police
followed Medgebow and observed him return to Room 811 of the Home2
Suites Hotel.
On January 4, 2018, the police executed a search warrant at Room 811
of the Home2 Suites Hotel. Medgebow was present when they searched his
room and found, amongst other things, MDMA (ecstasy) and several bags of
methamphetamine. A substantial amount of methamphetamine totaling
54.68 grams was recovered from Room 811 and the controlled purchases.
After the search, Medgebow gave a statement wherein he admitted
that all of the controlled substances in Room 811 belonged to him. He further
admitted that he sold methamphetamine in bulk in amounts ranging from 5
to 12 ounces per week. Medgebow confirmed that he possessed these drugs
with the intent to deliver them to other individuals in both Philadelphia and
Montgomery Counties.
On September 6, 2019, following a stipulated bench trial, the trial court
found Medgebow guilty of both charges. On February 25, 2021,2 the court
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2 Medgebow failed to appear for his originally scheduled sentencing on
December 10, 2019, due to his imprisonment in New Jersey on unrelated
charges and later absconded to Florida following his release. Authorities in
Florida subsequently arrested Medgebow and extradited him to Pennsylvania.
Upon receiving notification that Medgebow returned to Pennsylvania, the trial
court sentenced him.
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imposed a sentence of 60 to 120 months of imprisonment for the PWID
conviction and 6 to 12 months of imprisonment for the possession conviction,
concurrent to the PWID sentence. Medgebow filed a post-sentence motion,
which the court denied.
Medgebow filed this timely appeal. Medgebow and the trial court
complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Medgebow raises a single issue challenging the discretionary
aspects of his sentence. Medgebow’s Brief at 3. This Court has stated that
challenges to the discretionary aspects of a sentence do not entitle an
appellant to review as of right. Commonwealth v. Dempster, 187 A.3d
266, 272 (Pa. Super. 2018). To reach the merits of a discretionary sentencing
issue, we must conduct a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether [Medgebow]
preserved his issue; (3) whether [Medgebow’s] brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [in
accordance with 2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is appropriate
under the sentencing code. . . [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide he
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
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Here, Medgebow has satisfied the first three requirements of Colon.3
Accordingly, we must determine whether Medgebow raises a substantial
question.
In his Rule 2119(f) statement, Medgebow claims that his sentence was
unduly harsh and excessive because the trial court focused on factors which
were already factored into the sentencing guidelines, i.e., that he was an
admitted drug dealer, he lived a charmed life, and sold drugs to maintain his
lifestyle. He further argues the court gave inadequate weight to certain
mitigating factors, particularly, the non-violent nature of his crime, his
advanced age and physical ailments/heart problems, and that he sold drugs
merely to subsist. Therefore, according to Medgebow, a lesser sentence was
warranted. Medgebow’s Brief at 9-10.
An appellant raises a “substantial question” when he “sets forth a
plausible argument that the sentence violates a provision of the [S]entencing
[C]ode or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation
omitted).
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3 The Commonwealth claims that Medgebow’s excessiveness claim is waived
because he failed to raise it in his post-sentence motion. Commonwealth’s
Brief at 5. 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 (2003). However here, although
Medgebow’s motion could have been more specific, he did request that the
trial court “craft a sentence in the middle of the standard range of the
guidelines.” From this, we infer that Medgebow claimed his sentence was
excessive. Therefore, Medgebow preserved this issue.
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This Court has held that:
a claim of inadequate consideration of mitigating factors does not
raise a substantial question for our review. However, prior
decisions from this Court involving whether a substantial question
has been raised by claims that the sentencing court “failed to
consider” or “failed to adequately consider” sentencing factors has
been less than a model of clarity and consistency....
This Court has ... held that an excessive sentence claim—in
conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.
Commonwealth v. Caldwell, 17 A.3d 763, 769–70 (Pa. Super. 2015)
(internal quotation marks and citations omitted).
Here, Medgebow does not claim that the trial court failed to consider
relevant factors. Instead, he only claims that the trial court did not adequately
consider certain mitigating factors. This argument does not raise a substantial
question, and we will not consider the merits of it.
Even if we were to consider the merits, we would conclude that the trial
court did not abuse its discretion in sentencing Medgebow.4
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4 Our standard of review of a sentencing claim is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
(Footnote Continued Next Page)
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Notably, the trial court had the benefit of a pre-sentence report
“[W]here the trial court is informed by a pre-sentence report, it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009) (citation omitted). The court also had sentencing
memoranda prepared by the Commonwealth and the defense, as well as a PPI
evaluation. Additionally, Medgebow’s sentence was within the standard
range, albeit the high end. Such sentences are considered appropriate under
the Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162 171
(Pa. Super. 2010).
At the sentencing hearing, the court heard testimony from Medgebow’s
relative who indicated that, despite coming from a wealthy background,
Medgebow had “a lot of struggles with life” as well as serious health problems.
Medgebow’s counsel noted that Medgebow had once been very successful, but
his businesses failed. As a result, counsel suggested that Medgebow became
troubled which caused him to start committing crimes. Counsel further
emphasized that Medgebow took responsibility for the drugs found in his
room.
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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
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The trial court indicated that it was aware of the information pertaining
to Medgebow’s character and other relevant mitigating factors. It further
confirmed that it considered this information when formulating Medgebow’s
sentence, but it was not persuaded to give Medgebow a lesser sentence. See
Trial Court Opinion, 6/14/21, at 6.
The trial court observed that Medgebow sold drugs on a regular basis
and sold significant amounts of drugs. He did so by preying on people’s drug
habits for his own personal gain and to support his lavish lifestyle, which the
court found completely unacceptable and warranted consequences. After his
trial in this case, Medgebow was arrested multiple times in Delaware and
Florida. N.T., 2/25/21, at 27. Furthermore, the trial court specifically
acknowledged Medgebow’s difficulties, but explained to him that:
a lot of people face difficult things in their life and nothing you
have faced [justifies] any of your actions, nor does anything that
you faced justify a mitigated sentence. You demonstrate that you
pose a current and future threat to the community to be a repeat
offender.
Id. at 28.
Based upon the foregoing, we would find that the trial court did not
abuse its discretion when it sentenced Medgebow, and that his claims are
meritless.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2021
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