Com. v. Chapman, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
MANLEY CHARLES CHAPMAN
Appellant No. 353 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000564-2019
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MANLEY CHARLES CHAPMAN
Appellant No. 373 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000253-2019
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MANLEY CHARLES CHAPMAN
Appellant No. 836 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
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In the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000671-2019
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 09, 2021
Appellant Manley Charles Chapman appeals from the January 13, 2020
judgments of sentence entered in the Court of Common Pleas of Bradford
County (“trial court”), following his jury convictions for criminal use of
communications facility, two counts of delivery of a controlled substance
(methamphetamine and alprazolam), possession with intent to deliver
(“PWID”) (methamphetamine) and possession of contraband
(methamphetamine ) by an inmate.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. On June
4, 2019, following a February 1, 2019 narcotics investigation, Appellant was
charged with, inter alia, criminal use of communications facility, and two
counts of delivery of a controlled substance (methamphetamine and
alprazolam) at docket number 564-2019 (“First Case”). The affidavit of
probable cause accompanying the complaint alleged:
1. On February 1, 2019, your affiant, along with officers from
the Bradford County Drug Task Force (BCDTF) met with
Confidential Informant (CI) #BN8-009-19 for the purpose of
purchasing .7 of a gram of crystal meth and one Klonopin tablet
from a white male, identified by the CI and BCDTF members as
[Appellant]. While in BCDTF members’ and your affiant’s
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1 18 Pa.C.S.A. §7512(a) and 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A.
§ 5123(a.2), respectively.
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presence, the CI made numerous contacts with [Appellant] by
voice calling and texting on Facebook Messenger. While
speaking, the CI then made arrangements to purchase the
controlled substance for $50.00. While making arrangements,
[Appellant] stated that the CI needed to come to meet him at
the “Twin Rivers Terrace” Apartment Complex, located on Spruce
Street, Athens, PA 18810, in order to make the deal.
[Appellant] further requested that the CI purchase small baggies
to store drugs from a local tobacco shop to give to Chapman as
a part of the exchange. Prior to leaving, the CI was searched
without any contraband located.
2. At approximately 3:12 PM after purchasing the baggies
requested by [Appellant], your affiant arrived at [the] apartment
complex while driving the [CI]. Upon pulling into the first
parking lot between the 100 and 200 buildings, the CI was
eventually contacted by Chapman and asked to walk around the
north side of the 200 building and was given $50.00 in pre-
recorded OAG buy money and the requested, purchased small
baggies prior to leaving the vehicle.
3. Upon walking, officers observed the CI meeting with a
white male wearing a black hoodie. After seeing them exchange
things and smoking cigarettes briefly before the CI walked
around the rear of the 200 building to the south side of the
building and back to your affiant’s vehicle. Upon entering the
vehicle, [t]he CI immediately handed your affiant a folded $5.00
bill containing a bag with suspected crystal meth and a Klonopin
tablet that the CI stated was exchanged with [Appellant], the
male in the black hoodie, for the $50.00 in OAG buy money.
The CI stated that the $5.00 bill was given by [Appellant] for the
baggies that were given to him.
4. The purchased meth was subsequently found to weigh
approximately .7 grams and field-tested positive for the
presence of methamphetamine by Officer Serfos.
Affidavit of Probable Cause, 6/4/19 (sic). On February 25, 2019, in
connection with a traffic stop, Appellant was charged with, among other
things, PWID at docket number 253-2019 (“Second Case”). The affidavit
accompanying the complaint alleged:
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On February 25th 2019, I, [Officer] Dekar a sworn member of
the Athens Borough police department, was on patrol. At
approximately 03:13 hrs, I observed a white pick-up truck leave
the 300-500 block of Twin Rivers apartment. I observed the
vehicle pull to the side of the road on Longway street without
signaling. I observed the struck [sic] stop on the roadway for an
unknown reason. I further observed the male driver, later
identified as, Kevin C. Shappee, waive his arm at me out of his
driver’s side window. I activated my emergency overhead lights
at this time to initiate a traffic stop.
Upon making contact with Shappee, I detected an odor of
marijuana emitting from the vehicle. I requested Shappee’s
driver [sic] license, which he provided. I then went back to my
vehicle. I requested back-up at this time. [Officer] Zebrowski
and [Officer] Watkins, both sworn members of the Sayre
Borough Police department arrived on the scene at this time.
We approached the vehicle at this time. I asked Shappee where
the marijuana was? Shappee ultimately advised me that it was
in the glove box. I observed Shappee’s eyes to be glassy and
red in appearance. Due to the weather I advised Shappee that I
was going to detain him and take him to my office to perform
field sobriety tests. Shappee agreed. Shappee was then patted
down. Shappee was then placed in my patrol vehicle.
Once in the patrol vehicle Shappee asked if I wanted to get a
guy that has a lot of “ice” on him? Shappee then stated that the
guy, later identified as [Appellant], had “a bunch of ice” on him.
Later described as two sandwich baggies about half full of
methamphetamine. . . . .
Shaped advised me that he gave [Appellant] and Lucy a ride
home to Twin Rivers. Shappee advised me that on the way from
Walmart to the apartment they smoked weed in the truck. Once
they arrived at twin rivers they walked into the third door from
the right, Apt. Shappee stated that [Appellant] was going to pay
him gas money for the ride. Once he was inside he was offered
“ice” and he declined. Shappee advised me that “ice” was
methamphetamine and that he had seen it in the past before.
Shappee advised me that he took $3.00 from him instead.
Shappee stated that he would estimate that there was about two
sandwich baggies half full of “ice” that he observed while inside
Lucy’s bedroom. Shappee stated that [Appellant] was grabbing
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and or touching his right rear small of his back with his right
hand frequently. Shappee believed that he had a firearm on
him. Shappee witnessed a large “black tactical knife” in
[Appellant’s] hand while in the apartment. Shappee stated
[Appellant] was looking under items while in the house and
acting paranoid.
Shappee’s girlfriend, Amber Herman, confirmed [Appellant] and
Jacqueline Lucy were in fact the two individuals that Shappee
gave a ride to Twin Rivers apartment complex. Herman also
stated that [Appellant] has messaged her within the last two
weeks trying to sell her methamphetamine. Herman has known
[Appellant] for approximately ten years. . . . .
A search warrant was executed on the above apartment by the
members of the Bradford Regional Special Operations Team.
Once the residence was secure and the occupants were safe
Athens Borough police officers started the search of the
residence. Found in the residence was methamphetamine,
packaging equipment, scales, a log book of drug
sales/transactions, marijuana, a water bong, a small plastic
container with unknown white substance inside, metal knuckles,
a homemade taser, numerous modified fake firearms, numerous
knives, multiple glass pipe used for inhaling narcotics, and
counterfeit U.S. currency totaling $9,900.00.
The tenant of the apartment filled out a written statement
knowing that [Appellant] had methamphetamine inside her
residence. She also knew that [Appellant] was attempting to
conceal his narcotics from law enforcement as all of the
occupants were called down from the upstairs of the apartment.
Affidavit of Probable Cause, 2/25/19 (sic). On July 23, 2019, while Appellant
was in jail at the Bradford County Correctional Facility, he was charged with
possession of contraband (methamphetamine) by an inmate at docket
number 671-2019 (“Third Case”). The three cases eventually were joined
for jury trial. The trial court summarized the evidence adduced at trial as
follows.
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Attorney General Bureau of Narcotics Investigation Drug
Control Agent Urbanski testified that prior to February 22, 2019,
a confidential informant (CI) made contact with Appellant via
Facebook messenger, text and voice calls in his presence.
Arrangements were made to meet. Appellant also requested CI
to obtain small baggies. CI was searched and no contraband
was found. Agent and CI drove to the meeting location, an
apartment complex. CI engaged in more text messages and
voice calls with, who she said was Appellant. Agent then
observed CI walk towards building and meet with a white male
in a black hoodie fitting the description of Appellant. CI and
male walked around building. A short time later CI returned and
handed Agent prescription medication tablet and a $5.00 bill
with a small amount of methamphetamine in it. CI told agent
she met with Appellant, gave him $50.00 which was pre-
recorded by Agent, in exchange for the tablet and
methamphetamine as well as $5.00 for providing the plastic
bags for him. A field test of the methamphetamine was positive.
It was photographed. The weight was approximately 1 gram.
The written messages on CI’s telephone were photographed.
The cash provided to CI was photographed.
On February 25, 2020 at 3:00 a.m., Athens Borough Police
Officer Dekar had an interaction with a Kevin Shappee. Mr.
Shappee advised the officer that he had observed a large
quantity of Methamphetamine at an apartment where Appellant
was staying. A search warrant was obtained and officers
knocked on the door to the apartment and called the individuals
who live there to come out. Appellant was the last one to exit
which was 10 minutes after officer’s knocked on the door. The
apartment was searched and contraband was found such as
scales, scale weights, calibration weights, packaging,
paraphernalia for use, needles, methamphetamine, marijuana,
numerous packaging materials, [and] containers. Also found
was an improvised taser, brass knuckles, numerous knives, a
machete and a bb revolver. The sandwich bags of
methamphetamine described by Mr. Shappee were not found.
Appellant was also searched but nothing found on his person.
Thereafter, a second search took place at the police station
holding cell, consisting of a rectal search. Appellant’s rectum
was red and irritated. Officer believed that Appellant concealed
the sandwich bags of drugs within his rectum. Appellant was
transported to the Bradford County Facility. On the way to the
jail, Appellant asked if there was anything he could do for the
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charges, that he is not the “largest dealer in the valley.”
Appellant also asked Officer Dekar if he could get his wallet for
him which was located behind the headboard of bed. The wallet
was then found by another officer and contained $700.00+.
Jeremy Earle was an inmate in Bradford County
Correctional Facility in late February or early March, 2019 when
he ingested methamphetamine. Earle was disciplined for the use
of methamphetamine – “in the hole” for nearly 3 weeks. He
heard Appellant say that the methamphetamine was “packed in
him before he had come down the steps, prior to the jail.” “[I]t
was placed in his butt” and that “it was a little over an ounce.”
Several inmates at the jail had tested positive for
methamphetamine, including Mr. Earle and Appellant.
Bradford County District Attorney’s Office Detective Wisel
assisted in organizing the physical evidence before trial. While
looking at the evidence, he discovered that the serial numbers
on the cash provided to CI, which was depicted on a picture,
Commonwealth Exhibit 2, who gave it to Appellant in exchange
for illegal substances matched the serial numbers on the cash
found in Appellant’s wallet.
Trial Court Opinion, 6/9/20, at 1-4. On January 13, 2020, the trial court
sentenced Appellant to an aggregate term of 126 to 276 months’
imprisonment. In the First Case, the court sentenced Appellant to 27 to 60
months’ imprisonment for delivery of a controlled substance
(methamphetamine), 18 to 36 months in prison for delivery of a controlled
substance (Alprazolam), and 18 to 36 months’ imprisonment for criminal use
of communication facility, for a total sentence of 63 to 132 months. In the
Second Case, the court sentenced Appellant to 33 to 72 months’
imprisonment for PWID. In the Third Case, the court sentenced him to 30 to
72 months’ incarceration for possession of a controlled substance
(methamphetamine) by an inmate.
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Appellant filed post-sentence motions in each of the three cases,
arguing, inter alia, that his convictions were against the weight of the
evidence and that his sentence was too harsh. The trial court denied the
motions. Appellant timely filed separate notices of appeal in each case. We
sua sponte consolidated the appeals. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents three issues for our review.2 First, with
respect to the First Case, Appellant claims that the trial court abused its
discretion in denying his motion for a mistrial “after the Commonwealth
introduced evidence it had in its possession prior to trial that was not
disclosed to [him] and then introduced at trial.” Appellant’s Brief, First Case,
at 7. Second, he challenges the weight of the evidence supporting his
convictions for PWID, two counts of delivery of a controlled substance,
criminal use of a communication facility, and possession of contraband by an
inmate. 3 Third, Appellant challenges the discretionary aspects of his
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2 To the extent Appellant seeks to suppress evidence resulting from the
search warrant that was obtained based on Mr. Shappee’s statement in the
Second Case, he is not entitled to any relief. Appellant failed to file a
suppression motion below. See Pa.R.Crim.P. 581(B) (“If timely motion is
not made hereunder, the issue of suppression of such evidence shall be
deemed to be waived.”); see also Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”).
3 Even though couched as a sufficiency of the evidence claim, we construe it,
for reasons provided below, as challenging the trial court’s weight and
credibility determinations.
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sentence. In specific, he argues that the respective sentences imposed in
the three cases were excessive and harsh. We address the claims in turn.
Appellant first argues that the trial court abused its discretion in
denying his motion for mistrial where the Commonwealth allegedly failed to
disclose the matching serial numbers of the pre-recorded buy money
provided to the CI and the money discovered in Appellant’s wallet.
Our standard of review for the denial of a motion for a mistrial is
limited to assessing whether the trial court abused its discretion.
Commonwealth v. Scott, 146 A.3d 775, 778 (Pa. Super. 2016), appeal
denied, 166 A.3d 1232 (Pa. 2017). Moreover, decisions involving discovery
matters are also within the sound discretion of the trial court.
Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017), appeal
denied, 189 A.3d 986 (Pa. 2018). “An abuse of discretion is not merely an
error of judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Antidormi, 84 A.3d 736, 749–50 (Pa. Super. 2014)
(citations omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
The purpose of the discovery rules is to prevent a trial by ambush that
violates a defendant’s right to due process. Commonwealth v. Ulen, 650
A.2d 416, 419 (Pa. 1994) (discussing the prior version of Pa.R.Crim.P. 573).
Pennsylvania Rule of Criminal Procedure 573 provides, in relevant, part:
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(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.
....
(f) any tangible objects, including documents,
photographs, fingerprints, or other tangible
evidence[.]
Pa.R.Crim.P. 573(B)(1)(f). As we have explained:
Rule 573 does not abridge or limit the Commonwealth’s duty to
provide discovery pursuant to Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. “In
Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment irrespective of the good
faith or bad faith of the prosecution.” Commonwealth v.
Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (2001) (quotation
marks omitted). “There are three components of a true Brady
violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct.
1936, 144 L.Ed.2d 286 (1999).
However, the rule imposes greater obligations upon prosecutors
than the Brady requirements. For instance, (B)(1)(b) requires
production of a defendant’s written confession. Nevertheless,
our cases frequently analyze whether a particular discovery
sanction was justified by analyzing whether the evidence was
required to be disclosed pursuant to Brady. See e.g.
Commonwealth v. Robinson, 122 A.3d 367 (Pa. Super. 2015)
(reversing order precluding Commonwealth from introducing
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evidence, analyzing Brady). That one would draw upon Brady
principles in determining materiality is unsurprising since the
rule limits disclosure to “material” items, Pa.R.Crim.P. 573(B),
and “material for Brady purposes” has a particular meaning.
See e.g. Commonwealth v. Willis, 616 Pa. 48, 46 A.3d 648(2012) (noting that admissibility at trial is not a prerequisite to
disclosure under Brady).
Commonwealth v. Maldonodo, 173 A.3d 769, 774 (Pa. Super. 2017),
appeal denied, 182 A.3d 991 (Pa. 2018). As noted, the duties to disclose
information imposed by Brady and Rule 573 are overlapping, but not
identical. We often have analyzed claims involving Rule 573 using principles
from Brady. For example, in the context of Brady, it is well settled that “no
Brady violation occurs where the parties had equal access to the
information or if the defendant knew or could have uncovered such
evidence with reasonable diligence.” Commonwealth v. Morris, 822
A.2d 684, 696 (Pa. 2003) (citation omitted) (emphasis added). In the
context of Rule 573, this Court also has noted that “[w]here evidence is
equally accessible to both the prosecution and the defense, the latter cannot
employ [the discovery rules] against the Commonwealth.” See Santos, 176
A.3d at 883 (citations omitted). Furthermore, Rule 573 does not require the
Commonwealth to divulge its trial tactics or how it may use certain
information, and defense counsel has a duty to investigate available
information for possible evidence. See Maldonodo, 173 A.3d at 783-84;
Commonwealth v. Monahan, 549 A.2d 231, 235 (Pa. Super. 1988).
Similarly, Rule 573 does not entitle a defendant to information in a form
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most helpful or convenient to the defendants. See Maldonodo, 173 A.3d at
783; Commonwealth v. Robinson, 122 A.3d 367, 373-74 (Pa. Super.
2015), appeal denied, 130 A.3d 1289 (Pa. 2015). Nonetheless, courts
have cautioned that “[b]ecause we are dealing with an inevitably imprecise
standard [regarding materiality], and because the significance of an item of
evidence can seldom be predicted accurately until the entire record is
complete, the prudent prosecutor will resolve doubtful questions in favor of
disclosure.” Maldonodo, 173 A.3d at 781-82 (citation omitted).
If the Commonwealth has violated its discovery obligations, the trial
court is authorized to impose sanctions:
(E) Remedy. If at any time during the course of the
proceedings it is brought to the attention of the court that a
party has failed to comply with this rule, the court may order
such party to permit discovery or inspection, may grant a
continuance, or may prohibit such party from introducing
evidence not disclosed, other than testimony of the defendant,
or it may enter such other order as it deems just under the
circumstances.
Pa.R.Crim.P. 573(E).
Instantly, based on our review of the record, we cannot conclude that
the trial court abused its discretion in denying Appellant’s motion for a
mistrial. As the trial court aptly reasoned:
Here, the Commonwealth did not violate Rule 573. The
matching of the serial numbers on the cash provided to the CI to
that in Appellant’s wallet was only discovered by the
Commonwealth during the trial. It was Appellant who, on the
night of his arrest, pointed the police officers as to where his
wallet was located. The police officers were then able to seize
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the wallet and cash inside the wallet. Thus, there was no failure
to disclose evidence. The picture of the cash used by the CI to
purchase illegal substances from Appellant was disclosed as set
forth in the affidavit of probable cause. The cash and wallet
were listed on the evidence sheet in one of Appellant’s other
cases. All evidence was available to Appellant.
Even if the Commonwealth had violated its duty to disclose
evidence, Appellant’s claim of surprise does not merit relief.
Appellant did not articulate any prejudice other than surprise.
Appellant did not establish or argue that his trial strategy was
changed or any other form of prejudice. Appellant did ask for a
continuance in the alternative to a mistrial, but did not set forth
how a continuance would assist him in his defense. This is most
likely because there was nothing that could be done. Finally, the
fact that Appellant was, or should have been, aware of the cash
in his wallet matching the cash used by the CI refutes his claim
of surprise.
In light of the above, there was no violation of their duty to
disclose by the Commonwealth. Even if there had been a
violation, there is no error in denying the motion for mistrial[.]
Trial Court Opinion, 6/9/20, at 9. Accordingly, Appellant is not entitled to
any relief. Appellant was made aware of the existence of the pre-recorded
cash that was provided to the CI. Indeed, Appellant voluntarily directed the
police to the location of his wallet wherein the cash at issue was discovered.
We now turn to Appellant’s second issue, which implicates the weight
of the evidence. As we have explained:
On this issue, our role is not to consider the underlying question
of whether the verdict was against the weight of the evidence.
Rather, we are to decide if the trial court palpably abused its
discretion when ruling on the weight claim. When doing so, we
keep in mind that the initial determination regarding the weight
of the evidence was for the factfinder. The factfinder was free to
believe all, some or none of the evidence. Additionally, a court
must not reverse a verdict based on a weight claim unless that
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verdict was so contrary to the evidence as to shock one’s sense
of justice.
Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]
trial court’s denial of a post-sentence motion ‘based on a weight of the
evidence claim is the least assailable of its rulings.’” Commonwealth v.
Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.
Diggs, 949 A.2d 873, 880 (Pa. 2008)).
In the First Case, Appellant challenges the weight assigned to the CI’s
and the Agent Urbanski’s testimony. Appellant’s Brief, First Case, at 15-16.
Additionally, he casts doubt on their credibility. Id. In the Second Case,
Appellant essentially attacks Mr. Shappee’s testimony and claims it is
“incredible” and “unreliable.” Appellant’s Brief, Second Case, at 7.
Alternatively, Appellant proffers his version of the facts where Lucy, the
named tenant of the apartment, is a drug dealer. Id. at 7-8. In the Third
Case, Appellant claims that Mr. Earle’s testimony should have been
“discounted” because “he is an incredible witness.” Appellant’s Brief, Third
Case, at 9. In all three cases, Appellant essentially attacks the jury’s weight
and credibility determinations, and invites us to accept his version of events.
We decline the invitation. It is settled that we may not substitute our
judgment for that of the factfinder—whether a jury or the trial court—
because it is the province of the factfinder to assess the credibility of the
witnesses and evidence. See Commonwealth v. DeJesus, 860 A.2d 102,
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107 (Pa. 2004); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995)
(“an appellate court is barred from substituting its judgment for that of the
finder of fact.”); Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa.
Super. 2005) (stating that “[t]he weight of the evidence is exclusively for
the finder of fact[,] who is free to believe all, part, or none of the evidence
and to determine the credibility of witnesses. An appellate court cannot
substitute its judgment for that for the finder of fact.”). Appellant’s claim
lacks merit.
Lastly, we address Appellant’s challenge to the discretionary aspects of
his sentence.4 It is well-settled that “[t]he right to appeal a discretionary
aspect of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the
discretionary aspects of a sentence, an appellant’s appeal should be
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4 When reviewing a challenge to the trial court’s discretion, our standard of
review 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. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to 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.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013).
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considered as a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated 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:
[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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first three requirements of the four-
part Moury test. Appellant filed a timely appeals to this Court, preserved
the issue on appeal through his post-sentence motions, and included a
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Pa.R.A.P. 2119(f) statement in his briefs.5 We, therefore, must determine
only if Appellant’s sentencing issues raise a substantial question.
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). We have found that a substantial question
exists “when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Phillips, 946
A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964
A.2d 895 (Pa. 2009). “[W]e cannot look beyond the statement of questions
presented and the prefatory [Rule] 2119(f) statement to determine whether
a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10
(Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015).
It is settled that this Court does not accept bald assertions of
sentencing errors. See Commonwealth v. Malovich, 903 A.2d 1247,
1252 (Pa. Super. 2006). When we examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists, “[o]ur inquiry
must focus on the reasons for which the appeal is sought, in contrast to the
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5 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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facts underlying the appeal, which are necessary only to decide the appeal
on the merits.” Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa.
Super. 2008) (quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.
Super. 2005)). A Rule 2119(f) statement is inadequate when it “contains
incantations of statutory provisions and pronouncements of conclusions of
law[.]” Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005)
(citation omitted).
As we discussed earlier, Appellant received an aggregate sentence of
126 to 276 months’ imprisonment. In the First Case, the court sentenced
Appellant to 27 to 60 months’ imprisonment for delivery of a controlled
substance (methamphetamine), 18 to 36 months in prison for delivery of a
controlled substance (Alprazolam), and 18 to 36 months’ imprisonment for
criminal use of communication facility, for a total sentence of 63 to 132
months. In the Second Case, the court sentenced Appellant to 33 to 72
months’ imprisonment for PWID. In the Third Case, the court sentenced him
to 30 to 72 months’ incarceration for possession of a controlled substance
(methamphetamine) by an inmate. Appellant concedes that his sentences
were in the standard range. See Moury, 992 A.2d at 171 (“[W]here a
sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code.”).
Here, Appellant asserts in his Rule 2119(f) statements only that his
sentence at each count and in the aggregate is excessive because it is too
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harsh. As the Commonwealth correctly notes, Appellant “does not offer any
explanation how the sentence is inconsistent with any provision of the
sentencing code or contrary to any fundamental norm of the sentencing
process.” Commonwealth’s Brief, First Case, at 13; Second Case, at 11. It
is well-settled that a bald claim of excessiveness, even due to the
consecutive nature of a sentence, 6 does not ordinarily raise a substantial
question. See Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013), appeal denied, 91 A.3d 161 (Pa. 2014). Appellant therefore fails to
raise a substantial question. He is not entitled to any relief.
In sum, the trial court did not abuse its discretion in denying
Appellant’s motion for a mistrial. His weight of the evidence and
discretionary aspects of sentencing claims lack merit.
Judgments of sentence affirmed.
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6 See Commonwealth v. Radecki, 180 A.3d 441, 468-69 (Pa. Super.
2018) (explaining that “excessiveness claims premised on imposition of
consecutive sentences do not raise a substantial question for our review”);
see also Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super.
2015) (en banc) (stating, “[a] court’s exercise of discretion in imposing a
sentence concurrently or consecutively does not ordinarily raise a substantial
question[.]”), appeal denied, 126 A.3d 1282 (Pa. 2015); see also
Commonwealth v. Ahmad, 961 A.2d 884, 887 n.7 (Pa. Super. 2008);
Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/09/2021
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