Com. v. Heath, A. ( 2020 )

J-S12009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTHUR BRAIN B. HEATH :
:
Appellant : No. 3262 EDA 2018
Appeal from the Judgment of Sentence Entered February 28, 2014
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002604-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTHUR BRAIN B. HEATH :
:
Appellant : No. 3352 EDA 2019
Appeal from the Judgment of Sentence Entered February 28, 2014
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002606-2011
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: Filed: May 14, 2020
Appellant, Arthur Brain B. Heath,1 appeals nunc pro tunc from the
judgment of sentence entered on February 28, 2014, at trial court docket
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S12009-20
numbers CP-51-CR-0002604-2011 and CP-51-CR-0002606-2011.2 We
affirm.
The trial court summarized the relevant facts of this case as follows:
This case proceeded to a waiver trial on September 10,
2013. The facts are as follows:
The following witnesses testified for the Commonwealth:
Philadelphia Police Sergeant Kevin Conway; Philadelphia Police
Detectives James Waring, Timothy Cliggett, Joseph Murray, and
Ralph Domenic; Victims LaShawn Gonzalez and Raul Dreke;
Philadelphia Police Officers Bruce Cleaver and Frank Sackosky;
Assistant District Attorneys Michael Barry and Erin Boyle; and lay
witnesses John Bowie, Christopher Floyd, and Latrell Howard.
On April 27th, 2010, around 1:30 P.M., LaShawn Gonzalez
(“Gonzalez”), Raul Dreke (“Dreke”), and Christopher Floyd
____________________________________________
1 Throughout the certified record, Appellant is referred to as “Arthur Brain B.
Heath.” However, in the nunc pro tunc post-sentence motion, Appellant’s
name is listed as “Arthur Brian B. Heath.” Post Sentence Motions Nunc Pro
Tunc, 6/29/18. Because the majority of documents in the record list the
spelling as “Brain,” we leave the caption, which reflects that Appellant’s name
is “Arthur Brain B. Heath,” unchanged.
2 On November 13, 2019, this Court issued a rule to show cause why the
appeals at trial court docket numbers CP-51-CR-0002604-2011 and CP-51-
CR-0002606-2011, which were both docketed initially at Superior Court
docket number 3262 EDA 2018, should not be quashed pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant’s counsel
responded that he had complied with Walker and filed separate appeals at
each trial court docket number. Response to Rule, 11/21/19. After additional
review, we concluded that counsel was correct; counsel had indeed filed
separate appeals. Order, 12/11/19. Accordingly, we vacated the rule to show
cause. Id. Additionally, the appeal at trial court docket number CP-51-CR-
0002604-2011 was assigned Superior Court docket number 3262 EDA 2018,
and the appeal at trial court docket number CP-51-CR-0002606-2011 was
assigned Superior Court docket number 3352 EDA 2019. Id. Finally, we
consolidated the appeals at 3262 EDA 2018 and 3352 EDA 2019 for
disposition. Id.-2-
J-S12009-20
(“Floyd”), went to a corner deli at the intersection of 20th and
Susquehanna streets Philadelphia, PA, to pick up beer, chips, and
candy. Notes of Testimony hereinafter N.T. 09/11/2013 at 24-26;
N.T. 09/12/2013 at 32. Upon entering the store, two (2) other
men entered and were greeted by the trio as they received the
goods they ordered. N.T. 09/11/2013 at 27. After receiving their
items, the trio left the store and walked towards Gonzalez’s house
down 20th street. N.T. 09/11/2013 at 28-29. As they walked down
the street, the men they had previously greeted inside the store
were stationed just around the corner of the deli. N.T. 09/11/2013
at 67-68. [A]s they walked by the men, Floyd heard one of them
say “what are you waiting for?” N.T. 09/11/2013 at 30.
At that time, one of the men pulled out a semi-automatic
hand gun and fired on the trio. N.T. 09/11/2013 at 29, 63. The
shooters then fled westward on Susquehanna Avenue. N.T.
09/11/2013 at 69. Gonzalez was shot in the back, chest, and lower
abdomen, and Dreke was shot in the shoulder.10 N.T. 09/11/2013
at 29. The day before the shooting[,] a close friend of Appellant,
Paris Grant, had been murdered on the same corner at 20th and
Susquehanna streets. N.T. 09/13/2013 at 57, 69. Rumors
circulating in the neighborhood implicated Floyd’s family in the
slaying after Floyd’s brother (Wesley Clark) paid for marijuana
using a bloody ten dollar bill.11 N.T. 09/13/2013 at 76-77.
10Dreke did not realize that he had been shot until he
arrived at his home after hurrying to get away from
the scene of the shooting. N.T. 09/11/2013 at 62-63.
11 Testimony regarding this murder was introduced as
[Appellant’s] motive for shooting at the eventual
victims and Floyd.
Gonzalez testified that he did not see who shot him, but
identified and described the men he passed on the sidewalk just
prior to the shooting and the shooter, specifically, as wearing a
white shirt and a white hat. N.T. 09/11/2013 at 30-32. Dreke
described the shooters as black males one 5’10” in a black shirt
and a tan hat with a gold brim; the other skinnier with a white
shirt on. N.T. 09/11/2013 at 67-68. He further described both men
as looking to be 23 or 24 years old. N.T. 09/11/2013 at 68. The
entirety of the shooting was captured on a nearby surveillance
camera. N.T. 09/11/2013 at 10. As Gonzalez lay on the ground
bleeding, Floyd ran from the scene to his home. Once at home, he
-3-
J-S12009-20
told his Uncle, Latrell Howard (Howard”), that “Art (Appellant)
shot Shon (Gonzalez).” N.T. 09/12/2013 at 35; N.T. 09/13/2013
at 58. Howard assisted the Officers in getting Gonzalez into the
back of the police cruiser where he was transported to Temple
University Hospital for treatment. N.T. 09/13/2013 at 40, 42, 54.
Gonzalez was placed in the intensive care unit at Temple
University Hospital for a week as a result of the shooting. N.T.
09/11/2013 at 33. His [carotid] artery was shattered and the
doctors placed an artery from his leg into his neck. N.T.
09/11/2013 at 33. At the time of the trial, Gonzalez was still on a
number of medications as a result of the shooting, and had
recently wrapped up a physical therapy regimen[]. N.T.
09/11/2013 at 34-35. Dreke was taken from his home by
ambulance to Temple University Hospital. N.T. 09/11/2013 at 65.
Dreke was treated for his shoulder wound and released the same
day. N.T. 09/11/2013 at 66.
On a later date, a highway patrol officer pulled over a car
containing four men. N.T. 09/12/2013 at 17. One of those men,
John Bowie (“Bowie”), was in possession of a hand gun that was
the weapon used in the shooting of Gonzalez and Dreke.12 N.T.
9/12/2013 at 13-14, 20. Bowie was the other man on the corner
with Appellant when the victims were shot. N.T. 09/12/2013 at
41; N.T. 09/13/2013 at 61.
12 Bowie testified that he never gave the gun to
[Appellant], and that the gun never left his possession
at any time. N.T. 09/12/2013 at 14.
The U.S. Marshals located Appellant on the 1700 block of
Edgely Street on August 24, 2010 at about 2:40 P.M. N.T,
09/10/2013 at 14. The U.S. Marshals approached the residents
and proceeded to announce their presence. N.T. 09/12/2013 at 7.
At that time, Appellant appeared in a second story window where
he attempted to throw a gun, which was in his possession, onto
the roof of the residence. N.T. 09/12/2013 at 8-9. Appellant was
unable to reach the roof, and the gun landed in the backyard
where it was recovered by the U.S. Marshals. N.T. 09/12/2013 at
9. Appellant managed to get on to the roof of the series of row
homes where he remained for at least an hour. N.T. 09/12/2013
at 12. The U.S. Marshals then lost sight of the Appellant. N.T.
09/10/2013 at 15. With the assistance of a K-9 unit, they later
located Appellant in the basement of a nearby home, hiding within
-4-
J-S12009-20
the wall of a small closet built to cover a heating unit. N.T.
09/10/2013 at 15. The Philadelphia Police and U.S. Marshals could
not get the Appellant to come out from the inside of the wall, and
at that point Appellant was stunned using a stun-gun and
restrained by a Sergeant Conway. N.T. 09/10/2013 at 15-16.
Appellant testified in his own defense claiming that he was
elsewhere at the time of the crime. N.T. 09/13/2013 at 68.
Appellant claimed that he was visiting the mother of Paris Grant
to offer his condolences, and, after that, he went to offer his
condolences to the mother of Paris Grant’s child. N.T. 09/13/2013
at 68-69. Appellant further testified that he was not in the
possession of the gun owned by Bowie at the time of the crime.
N.T. 09/13/2013 at 69-70. Additionally, he testified that the
reason he evaded the police was because he was on the run from
a parole violation stemming from a conviction in Delaware County,
Pennsylvania. N.T. 09/13/2013 at 71.
Appellant was convicted on September 16, 2013, and
subsequently sentenced on February 28, 2014. See Docket CP-
51-C[R]-0002604-2011, CP-51-CR-0002606-2011. …
Trial Court Opinion, 6/21/19, at 4-7.
The trial court set forth the procedural history as follows:
On August 24, 2010, Appellant was arrested and charged
with Attempted Murder in the First Degree,1 Aggravated Assault,2
Criminal Conspiracy,3 Possession of an Instrument of Crime,4
Terroristic Threats with the Intent to Terrorize Another,5 Simple
Assault,6 Recklessly Endangering Another Person,7 Firearms Not
to be Carried Without a License [(a Violation of the Uniform
Firearms Act) (“VUFA”)],8 and Carrying Firearms in Public in
Philadelphia [(VUFA)].9
1 18 Pa. C.S. § 901.
2 18 Pa. C.S. § 2702.
3 18 Pa. C.S. § 903.
4 18 Pa. C.S. § 907.
5 18 Pa. C.S. § 2706.
-5-
J-S12009-20
6 18 Pa. C.S. § 2701.
7 18 Pa. C.S. § 2705.
8 18 Pa. C.S. § 6106.
9 18 Pa. C.S. § 6108.
On September 10, 2013, Appellant’s case proceeded to a
waiver trial on the charges of Attempted Murder, Aggravated
Assault, and Criminal Conspiracy for one case, and Attempted
Murder, Aggravated Assault, Criminal Conspiracy, Unlicensed
Carrying of a Firearm, Carrying a Firearm in Public in Philadelphia,
and Possession of an Instrument of a Crime. The charges of
Terroristic Threats with the Intent to Terrorize Another, Simple
Assault, Recklessly Endangering Another Person were nolle
prossed prior to trial.
On September 16, 2013, Appellant was found guilty of two
(2) counts of Attempted Murder, two (2) counts of Aggravated
Assault, two (2) counts of Criminal Conspiracy, Unlicensed
Carrying of a Firearm, Carrying a Firearm in Public in Philadelphia,
and Possession of an Instrument of a Crime.
On February 28, 2014, Appellant was sentenced to an
aggregate sentence of 2[8]½ to 5[7] years in prison.[3]
____________________________________________
3 The trial court sentenced Appellant as follows:
So my sentence, based on all that and considering all that, [at CP-
51-CR-0002604-2011] on the attempted murder, your sentence
is ten to 20 years incarceration. On the aggravated assault, that
merges with the attempted murder. I’m not making an additional
sentence on that. Same thing with the criminal conspiracy, that
merges as well. So there’s no additional sentence on that. On the
firearms not to be carried without a license [(VUFA)], that
sentence is three and-a-half to seven years incarceration. That
would be consecutive. Carrying a firearm in public [(VUFA)], that’s
two and-a-half to five years incarceration, and that’s consecutive.
And possessing an instrument of crime, the sentence is two and-
a-half to five years incarceration, and that will be consecutive. On
-6-
J-S12009-20
On February 09, 2015, Appellant filed a pro se PCRA
[petition] alleging federal and state constitutional violations,
ineffective assistance of counsel, and the unavailability of
exculpatory evidence.
On August 03, 2015, Appellant’s PCRA counsel John P.
Cotter, was appointed by the court to represent Appellant.
On October 05, 2015, Appellant, through counsel, filed an
amended PCRA [petition] alleging that trial counsel was ineffective
for failing to file a direct appeal in violation of Appellant’s State
Constitutional rights.
On September 20, 2017, Appellant, through counsel, filed a
supplement to his amended PCRA petition alleging that Appellant’s
pro se PCRA [petition] was timely filed according to 42 Pa. C.S.
§§ 9543(a)(2)(vi), 9545(b)(1)(ii),(2).
On November 27, 2017, Appellant, through counsel, filed a
second supplement to his amended PCRA petition alleging that
trial counsel was additionally ineffective for failure to preserve the
issue of the Appellant’s timely filing of his first PCRA [petition].
On February 21, 2018, Appellant, through counsel, filed a
third supplement to his amended PCRA petition alleging that trial
counsel was ineffective for failing to discuss Appellant’s rights to
file post-sentence motions and appeals with Appellant.
On April 19, 2018, Appellant, through counsel, filed a fourth
supplement to his amended PCRA petition alleging that trial
counsel was ineffective for failure to introduce the video of the
incident showing the perpetrator’s face which would have shown
that the perpetrator was not Appellant.
____________________________________________
the attempted murder on the other transcript, that’s [CP-51-CR-
0002606-2011], the sentence is ten to 20 years incarceration, and
that’s consecutive.
N.T., 2/28/14, at 30-31. The remaining charges merged for sentencing
purposes. Id. at 31. Thus, Appellant’s aggregate sentence was twenty-eight
and one-half to fifty-seven years.
-7-
J-S12009-20
On June 27, 2018, this court granted Appellant’s PCRA
petition reinstating Appellant’s appellate rights, and allowing
Appellant to file post-sentence motions.
On June 29, 2018, Appellant, through counsel, filed both a
motion to reconsider sentence on the grounds that the sentence
of 2[8]½ to 5[7] years was unreasonable, and a motion for a new
trial based on the fact that Christopher Floyd was given a deal for
his testimony in Appellant’s case, and that this fact was not
disclosed to the defense.
On October 31, 2018, Appellant’s motions to reconsider
sentence and for a new trial were denied by operation of law.
On November 05, 2018, Appellant, through counsel, filed his
Notice of Appeal to the Superior Court.
On November 09, 2018, this court ordered Appellant to file
his Statement of Errors Complained of on Appeal pursuant to
1925(b). Appellant subsequently filed his Concise Statement of
Errors Complained of on Appeal on January 23, 2019.
Trial Court Opinion, 6/21/19, at 1-4.
On appeal, Appellant presents the following issues for this Court’s
consideration:
I. Is [A]ppellant is [sic] entitled to a new sentence hearing
because the trial court used the minimum mandatory sentence
statute to impose the sentence when this statute has been held to
be unconstitutional and illegal?
II. Is Appellant is [sic] entitled to a new sentence hearing when
the sentence of 2[8]½ to 5[7] years in prison was a manifest
abuse of discretion and unreasonable because there was no
support on the record for a sentence outside or above the
sentence guidelines and the trial court admitted impermissible
hearsay evidence at the sentence hearing?
III. Is [A]ppellant is [sic] entitled to a new trial because of after
discovered evidence that would establish his innocence of the
crimes?
-8-
J-S12009-20
Appellant’s Brief at unnumbered 2.4
In his first issue, Appellant asserts that his sentence was illegal because
the trial court relied on 42 Pa.C.S. § 9712, a mandatory-minimum sentencing
statute, which was declared unconstitutional. Appellant’s Brief at 15. After
review, we conclude that no relief is due.
Initially, we note that Appellant did not raise this issue in his Pa.R.A.P.
1925(b) statement. Generally, any issue not raised in a Pa.R.A.P. 1925(b)
statement is deemed waived for appellate review. Commonwealth v.
Castillo, 888 A.2d 775, 780 (Pa. 2005); Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998). However, in this claim of error, Appellant challenges the
legality of his sentence, and issues related to the legality of a sentence cannot
be waived and may be considered sua sponte. Commonwealth v. Bezick,
207 A.3d 400, 402 n.2 (Pa. Super. 2019) (citations omitted). Accordingly, we
proceed with our discussion.
The mandatory-minimum sentencing statute at issue, 42 Pa.C.S. §
9712,5 was held unconstitutional. Commonwealth v. Valentine, 101 A.3d
____________________________________________
4 For purposes of our disposition, we have renumbered Appellant’s issues.
5 Section 9712, provided, in part, as follows:
(a) Mandatory sentence.-- . . . any person who is convicted in
any court of this Commonwealth of a crime of violence as defined
in section 9714(g) . . . , shall, if the person visibly possessed a
firearm or a replica of a firearm, whether or not the firearm or
replica was loaded or functional, that placed the victim in
-9-
J-S12009-20
801, 812 (Pa. Super. 2014) (citing Alleyne v. United States, 570 U.S. 99(2013) (holding that any fact that increases the mandatory minimum sentence
is an element that must be submitted to the jury and found beyond a
reasonable doubt)). Herein, though, there is no evidence in the certified
record reflecting that the trial court relied on Section 9712 when fashioning
Appellant’s sentence. The only time the Commonwealth mentioned a
“mandatory” sentence was in reference to attempted murder charges and the
aggravated assault charge. N.T., 2/28/14, at 26. However, the trial court did
not impose a five-year minimum sentence on either of the attempted murder
convictions or aggravated assault; the trial court imposed ten-year minimum
sentences on each of those convictions. N.T., 2/28/14, at 30-31.
Additionally, Section 9712 never applied to VUFA charges. See 42
Pa.C.S. § 9714(g) (setting the forth the crimes of violence for which a
mandatory minimum sentence was applicable). Furthermore, the trial court
did not impose a five-year minimum on either VUFA conviction. Finally, the
trial court’s Sentencing Form, Certified Record at docket entry #26, states
that there is “no mandatory” sentence.
____________________________________________
reasonable fear of death or serious bodily injury, during the
commission of the offense, be sentenced to a minimum sentence
of at least five years of total confinement notwithstanding any
other provision of this title or other statute to the contrary. Such
persons shall not be eligible for parole, probation, work release or
furlough.
42 Pa.C.S. § 9712(a).
- 10 -
J-S12009-20
Before Section 9712 was declared unconstitutional, when that section
was implicated, “The court ha[d] no authority to impose a sentence less than
that required by a mandatory minimum provision established in statute.” 204
Pa. Code § 303.9(h). In the case at bar, there is nothing in the record
reflecting that Appellant received a mandatory-minimum sentence for any of
his convictions, and there is no evidence that Section 9712 had any impact on
Appellant’s sentence.
Nevertheless, we are cognizant that the trial court requested that we
remand this case. In its opinion, the trial court stated:
Here, this Court gave consideration to mandatory minimum
prescribed by 42 Pa. C.S.A. § 9712 specifically, when sentencing
the Appellant [to an aggregate sentence] of 6 to 12 years
imprisonment on the charges of firearms not to be carried without
a license [(VUFA - 18 Pa.C.S. § 6106)], and Carrying a firearm in
public [(VUFA - 18 Pa.C.S. § 6108)].
Trial Court Opinion, 6/21/19, at 8.
However, the Commonwealth argues that the trial court is not permitted
to add analysis after the fact, i.e., the trial court may not state in its Pa.R.A.P.
1925(a) opinion that it relied on Section 9712, when that “fact” is not
supported by the record. Commonwealth Brief at 7-11. The Commonwealth
is correct. See Commonwealth v. Borrin, 12 A.3d 466 (Pa. Super. 2011)
(stating that “we cannot accept the trial judge’s proclamation of his own
intentions because those intentions were only known to the trial judge himself
and do not appear on the face of the sentencing transcript.”). When reviewing
- 11 -
J-S12009-20
only the certified record on appeal, it does not support the trial court’s
position.
Moreover, insofar as the trial court states that it relied on Section 9712
in crafting the aggregate VUFA sentences, we conclude that this statement is
a non sequitur. If the mandatory minimum sentence was five years of
incarceration, but the trial court instead imposed minimum sentences of three
and one-half years and two and one-half years, respectively, there is no
support for the trial court’s statement. Section 9712 requires a mandatory
minimum sentence of five years of imprisonment, and Appellant did not
receive a five-year minimum for any conviction. Additionally, prior to being
held unconstitutional, mandatory minimums applied to individual offenses;
there is no authority for the proposition that a mandatory minimum can be
applied across an aggregated sentence. 42 Pa.C.S. § 9712(a); see also
Commonwealth v. McLaughlin, 574 A.2d 610, 617 (Pa. Super. 1990)
(separate applicable crimes require separate mandatory sentences).
In sum, nothing in the record supports the conclusion that Section 9712
impacted Appellant’s sentence. We decline the trial court’s invitation to
remand this matter as we discern no illegality in the sentence imposed.
Accordingly, Appellant is due no relief on his first issue.
Next, Appellant avers that the trial court abused its discretion by
imposing a manifestly unreasonable sentence where there was no support for
a sentence outside or above the Sentencing Guidelines. Appellant also asserts
- 12 -
J-S12009-20
that the trial court erred in admitting impermissible hearsay evidence at the
sentence hearing. Appellant’s Brief at 11-12.
Appellant’s issues challenge the discretionary aspects of his sentence.
We note that “[t]he right to appellate review of the discretionary aspects of a
sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-
part test:
We 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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Here, the first three requirements of the four-part test are met:
Appellant filed a timely appeal; Appellant preserved the sentencing issues at
- 13 -
J-S12009-20
the sentencing hearing6 or in his nunc pro tunc post-sentence motion;7 and
Appellant included a statement raising this issue in his brief pursuant to Rule
2119(f). Moury, 992 A.2d at 170. Therefore, we determine whether
Appellant raised a substantial question.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted
only when the appellate court determines that there is a substantial question
that the sentence is not appropriate under the Sentencing Code.
Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A
substantial question exists where an appellant sets forth a plausible argument
that the sentence violates a particular provision of the Sentencing Code or is
contrary to the fundamental norms underlying the sentencing process. Id.In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the trial court
abused its discretion when it imposed sentences outside the aggravated range
____________________________________________
6 In its brief, the Commonwealth asserts that Appellant failed to preserve the
hearsay issue relative to the discretionary aspects of Appellant’s sentence.
Commonwealth’s Brief at 16, n.4. We disagree. An appellant may preserve
a challenge to the discretionary aspects of a sentence either by raising it at
the time of sentencing or in a timely filed post-sentence motion.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013). The record
reveals that Appellant objected to the hearsay at the sentencing hearing.
N.T., 2/28/14, at 16. Accordingly, we do not find this issue waived.
7 Post Sentence Motions Nunc Pro Tunc, 6/29/18.
- 14 -
J-S12009-20
of the Sentencing Guidelines and ordered the sentences to run consecutively.
Appellant avers that the trial court failed to consider relevant sentencing
factors, mitigating circumstances, and rehabilitative needs, and instead
imposed unreasonable consecutive sentences. Appellant’s Brief at 3-4.
Appellant’s issues raise substantial questions for our review. See
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (finding a
substantial question where the appellant averred that the trial court failed to
consider certain sentencing factors in conjunction with an assertion that the
sentence imposed was excessive); see also Commonwealth v. P.L.S., 894
A.2d 120, 127 (Pa. Super. 2006) (claim that court relied on impermissible
factors, such as uncharged criminal conduct, raises substantial question); see
also Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)
(“Where the appellant asserts that the trial court failed to state sufficiently its
reasons for imposing sentence outside the sentencing guidelines, we will
conclude that the appellant has stated a substantial question for our review.”).
Because Appellant’s sentencing issues are interrelated, we address them
concurrently.
It is well settled that when the trial court has the benefit of a
presentence investigation (“PSI”) report, it is presumed that the court was
both aware of and appropriately weighed all relevant information contained
therein. Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). Where
the trial court imposes a sentence outside of the Sentencing Guidelines, “the
- 15 -
J-S12009-20
court shall provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines. Failure to comply shall be
grounds for vacating the sentence and resentencing the defendant.” Rodda,
723 A.2d at 214 (quoting 42 Pa.C.S. § 9721(b)). “We have interpreted these
provisions to require, at minimum, that when a court deviates from the
sentencing guidelines, it must indicate that it understands the suggested
sentencing range.” Id. (citation omitted). Therefore, when deviating from
the Sentencing Guidelines, the trial court must indicate its understanding of
the suggested ranges. Id. However, there is no requirement that the trial
court must state “magic words” in a verbatim recitation of the Sentencing
Guideline’s ranges to satisfy this requirement. Id. at 215. When imposing
sentence, the trial court has rendered a proper “contemporaneous statement”
where “the record demonstrates with clarity that the court considered the
Sentencing Guidelines in a rational and systematic way and made a
dispassionate decision to depart from them.” Id. at 216.
After review, we discern no abuse of discretion in the sentences
imposed. At Appellant’s sentencing, the trial court was apprised of the
Sentencing Guidelines and the maximum sentences available, stated that it
had reviewed and considered the PSI report, noted the injuries to the victims,
relayed its duty to protect the community, and concluded that Appellant was
incapable of rehabilitation. N.T., 2/28/14, at 6-8, 26-30. The trial court was
aware of the appropriate sentencing factors and mitigating evidence via its
- 16 -
J-S12009-20
consideration of the PSI report. Griffin, 804 A.2d at 8; Rodda, 723 A.2d at
214-216. “[I]t would be foolish, indeed, to take the position that if a court is
in possession of the facts, it will fail to apply them to the case at hand.”
Griffin, 804 A.2d at 8. Thus, it is evident that the trial court considered the
Sentencing Guidelines and made a dispassionate decision to depart therefrom.
Rodda, 723 A.2d at 215-216.
Finally, to the extent that Appellant is unhappy with the duration of his
incarceration due to the consecutive nature of the sentences, the decision to
order sentences to run concurrently or consecutively is left to the discretion
of the trial court. Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa.
Super. 2018). It is well settled that an appellant is not entitled to a “volume
discount” for his crimes by having all of his sentences run concurrently.
Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). “The
imposition of consecutive, rather than concurrent, sentences may raise a
substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Moury, 992 A.2d at 171-172 (citation
omitted). Herein, Appellant has not asserted any “extreme circumstances.”
Radecki, 180 A.3d at 470. We conclude that the trial court acted within its
discretion in imposing consecutive sentences after reviewing the facts of the
case, Appellant’s history, relevant sentencing factors, and the PSI report.
- 17 -
J-S12009-20
With respect to the trial court admitting hearsay regarding uncharged
criminal activity, we conclude there was no abuse of discretion. We point out
that the entirety of Appellant’s argument concerning hearsay is as follows:
The trial court over the objection of trial defense counsel also
considered impermissible hearsay evidence from a Detective who
testified a suspect in pharmacy robberies that the detective was
interviewing said that the defendant was involved in those
robberies. The trial court should not have considered this
testimony because it was hearsay. Pa. R. E. 802.
Appellant’s Brief at 12 (verbatim).
The record reflects that Detective Joseph Murray testified during
sentencing about a separate investigation into home invasions and robberies
at pharmacies in Southwest Philadelphia where one suspect identified
Appellant as a participant in those crimes. N.T., 2/28/14, at 17. Appellant’s
counsel objected to this statement, and the trial court overruled the objection.
Id. Detective Murray then testified that the United States Attorney sought to
charge Appellant in those robberies, but Appellant was never charged. Id.
Detective Murray stated that he had not met Appellant, “but his associates
who I arrested are -- violence wise, the worst group of people I’ve ever come
across in 15 years in law enforcement.” Id.8
Appellant avers that hearsay was admitted in violation of Pa.R.E. 802.
Appellant’s Brief at 12. However, it is well settled that a sentencing hearing
is not a trial, and the court is not bound by the rules of evidence applicable to
____________________________________________
8 There was no objection to this characterization.
- 18 -
J-S12009-20
trials. Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999).
The court may receive any relevant information for the purposes of fashioning
a sentence. Id. Thus, hearsay concerning uncharged criminal conduct may
be permitted at a sentencing hearing. Id.; see also P.L.S., 894 A.2d at 130(“the fact that a defendant is guilty of prior criminal conduct for which he
escaped prosecution has long been an acceptable sentencing consideration”).
Accordingly, we discern no abuse of discretion in the trial court overruling
Appellant’s objection and admitting Detective Murray’s statement.
In his final issue, Appellant asserts that he is entitled to a new trial
because there is after-discovered evidence establishing his innocence.
Appellant’s Brief at 16. Specifically, Appellant avers that the after-discovered
evidence is that Cristopher Floyd (“Floyd”), a witness for the Commonwealth
at Appellant’s trial, received a lenient sentence after pleading guilty to
aggravated assault and conspiracy. Id. Appellant claims that he discovered
that at Floyd’s sentencing hearing, the trial court indicated that there was an
off-the-record discussion where the trial court agreed not to send Floyd back
to prison if he would accept responsibility and plead guilty. Id. at 17. As
discussed below, there is no mention of any consideration from the
Commonwealth to Floyd relating to Appellant’s case.
“A post-sentence motion for a new trial on the ground of after-
discovered evidence must be filed in writing promptly after such discovery.”
Pa.R.Crim.P. 720(C). “To obtain a new trial based on after-discovered
- 19 -
J-S12009-20
evidence, the defendant must prove, by a preponderance of the evidence, that
the evidence: (1) could not have been obtained before the conclusion of trial
by the exercise of reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach a witness’s credibility; and
(4) would likely result in a different verdict.” Commonwealth v. Murray,
174 A.3d 1147, 1153 (Pa. Super. 2017) (citing Commonwealth v. Pagan,
950 A.2d 270, 292 (Pa. 2008); Pa.R.Crim.P. 720(C)).
Appellant asserts that the instant matter is similar to the after-
discovered evidence in Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super.
2015). Appellant’s Brief at 17. We disagree.
In Perrin, the appellant was granted a new trial based on after-
discovered evidence. Therein, the appellant learned that a witness for the
prosecution testified against the appellant pursuant to an agreement with the
federal government. Perrin, 108 A.3d at 51. This evidence was discovered
after the appellant was convicted and sentenced. Id. In the agreement, the
witness was offered a significantly lighter sentence on federal charges in
exchange for his cooperation with the prosecution in the appellant’s case. Id.
In the case at bar, there is no evidence that Floyd cooperated with the
prosecution of Appellant. In fact, at Appellant’s trial, Floyd was asked if he
was cooperating with the Commonwealth in exchange for favorable
consideration in his case, and Floyd responded that there was no deal with the
prosecution. N.T., 9/12/13, at 44, 82-83. Moreover, Assistant District
- 20 -
J-S12009-20
Attorney Erin Boyle addressed this issue the following day and reiterated that
there was no deal between Floyd and the Commonwealth. N.T., 9/13/13, at
26-30. Thus, this case is readily distinguishable from Perrin.
Moreover, even if the trial court in Floyd’s case made such a statement
to Floyd, it has no impact on Appellant’s case. As noted, the record in the
instant case reflects that there was no sentencing agreement or promise of
leniency made by the Commonwealth to Floyd in exchange for his testimony.
The fact that the trial judge in Floyd’s case may have asked Floyd to take
responsibility in exchange for sentencing consideration in his own case has
absolutely no bearing on Appellant’s case. Appellant has not substantiated
how his allegation would be used as anything other than impeachment
evidence, and he has not established that the statement in Floyd’s case would
result in a different verdict in his own case. Murray, 174 A.3d at 1153.
Therefore, we conclude that Appellant has failed to satisfy the requirements
for after-discovered evidence. Id.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Colins joins this Memorandum.
Judge McCaffery concurs in the result.
- 21 -
J-S12009-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/20
- 22 -