Com. v. King, M. ( 2023 )

J-S07037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MELVIN KING :
:
Appellant : No. 2275 EDA 2021
Appeal from the Judgment of Sentence Entered February 14, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003697-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 8, 2023
Appellant, Melvin King, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his jury trial conviction for persons not to possess firearms.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On April 29, 2018, Officers Anthony Agudo and Ryan Redmond responded to
a radio call of gunshots near the 3200 block of Shelbourne Street. The officers
arrived at the scene and did not find any suspects, but they recovered fired
cartridge casings. Analysis of this evidence led police to believe that at least
three (3) different firearms were used in the shooting. Nevertheless, the
officers did not recover any firearms from the scene.
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1 18 Pa.C.S.A. § 6105(a)(1).
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The officers discovered security cameras at a property on the block.
Officer Agudo reviewed the surveillance footage, which depicted two black
males wearing red and black clothing. The two men walked towards another
black male, later identified as Appellant, who was wearing a dark jacket and
distinctive blue track pants. The two men drew firearms and fired at
Appellant. While facing the shooters, Appellant kept his left hand inside his
jacket pocket and raised his arm. Smoke appeared to come from the pocket,
signaling to Officer Agudo that Appellant returned fire.
Around this time, the officers received a call that a gunshot victim had
arrived at Temple Hospital. A blue Toyota Matrix dropped off the victim and
remained parked in front of the hospital. Officer Agudo called another officer,
who was already at the hospital, and asked him to describe the clothing of the
gunshot victim. The officer’s description of the gunshot victim matched the
appearance of Appellant from the surveillance footage. Subsequent testing
also revealed the presence of gunshot residue on Appellant’s hands.
Officers Agudo and Redmond went to the hospital and found Appellant
in the emergency department. Detective James Gruninger, the lead
investigator on the case, arrived at the hospital shortly thereafter. After
checking Appellant’s identifying information against police records, the
detective learned there was an active warrant for Appellant’s arrest. Detective
Johnson then recovered Appellant’s belongings and put them on a property
receipt.
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Detective Mark Johnson assisted Detective Gruninger with this
investigation by preparing an application for a warrant to search the vehicle
that transported Appellant to the hospital. While police waited for the warrant,
Officer Kyle Elwood secured the vehicle. Once police obtained the warrant,
they towed the vehicle to a secure lot. Detective Johnson and other officers
then searched the vehicle and photographed its contents. Significantly, the
vehicle contained a black, puffy jacket and a blue and white track jacket. The
black jacket had a hole in the left pocket. Police also recovered blood from
one of the floor mats.
Based upon this evidence, police arrested Appellant for his role in the
shootout. On August 5, 2019, Appellant filed a suppression motion. In it,
Appellant argued that police conducted illegal, warrantless searches of his
vehicle and hospital room. Appellant also claimed that police lied about
discovering his jackets during the search pursuant to the warrant. The court
conducted a suppression hearing on November 4, 2019. Following the
hearing, the court denied the suppression motion.
A jury trial commenced on November 13, 2019. At that time, Appellant
stipulated that he was not allowed to possess a firearm based upon a previous
conviction. (See N.T. Trial, 11/14/19, at 162-63). At the conclusion of trial,
the jury convicted Appellant of persons not to possess firearms. On February
14, 2020, the court sentenced Appellant to six (6) to twelve (12) years’
imprisonment. Appellant timely filed a post-sentence motion on February 18,
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2020, arguing that the conviction was against the weight of the evidence. The
motion did not include any challenges to the sentence. On February 25, 2020,
the court denied the post-sentence motion.
The trial court opinion sets forth the remaining procedural history as
follows:
On March 6, 2020, Appellant filed a timely appeal with the
Superior Court of Pennsylvania from [a different] judgment
of sentence imposed following the revocation of Appellant’s
probation on docket number CP-51-CR-008683-2014. On
March 17, 2020, the Superior Court of Pennsylvania
docketed Appellant’s violation of probation appeal at 866
EDA 2020. [The trial c]ourt later issued a [Pa.R.A.P.]
1925(a) opinion on November 2, 2021, in which it addressed
appellate issues relating to Appellant’s violation of probation
appeal.
On April 2, 2020, Appellant filed a separate notice of appeal
from the judgment of sentence imposed following his
[firearms] conviction. On this notice of appeal, Appellant’s
counsel erroneously included the incorrect Common Pleas
docket number, mistakenly listing docket number CP-51-
CR-0008683-2014, which was associated with Appellant’s
violation of probation case. Counsel should have instead
listed docket number CP-51-CR-0003697-2018, which was
associated with the instant matter…. On May 8, 2020, the
Superior Court of Pennsylvania docketed the notice of
appeal containing the incorrect docket number at 1062 EDA
2020.
On November 22, 2020, [prior counsel] filed an application
to withdraw as counsel from Appellant’s cases. The Superior
Court of Pennsylvania granted this application on December
15, 2020, and ordered [the trial c]ourt to appoint substitute
counsel for Appellant. On December 23, 2020, [the trial
c]ourt appointed [current counsel] to represent Appellant on
his appellate matters. On August 16, 2021, the Superior
Court of Pennsylvania issued a Rule to Show Cause as to
why the appeal docketed at 1062 EDA 2020 should not be
dismissed as duplicative of the appeal docketed at 866 EDA
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2020. Although Appellant filed a response, the Superior
Court dismissed the appeal docketed at 1062 EDA 2020 sua
sponte as duplicative.
On September 4, 2021, Appellant filed a motion with [the
trial c]ourt to reinstate his direct appeal rights nunc pro tunc
for his [firearms] conviction at docket number CP-51-CR-
0003697-2018. Appellant subsequently filed both a new
notice of appeal and a [Pa.R.A.P.] 1925(b) Statement of
Matters Complained of on Appeal with [the trial c]ourt on
September [9], 2021. The Superior Court of Pennsylvania
docketed this new appeal at 1829 EDA 2021 on September
20, 2021. On October 5, 2021, the Superior Court of
Pennsylvania issued a Rule to Show Cause as to why the
appeal should not be dismissed as untimely filed. On
October 28, 2021, due to Appellant’s failure to file a
response, the Superior Court of Pennsylvania quashed the
appeal docketed at 1829 EDA 2021 as untimely.
On September 29, 2021, Appellant separately filed a [Post
Conviction Relief Act] petition … seeking reinstatement of
his direct appeal rights nunc pro tunc for his [firearms
conviction]. On November 4, 2021, [the c]ourt granted
Appellant’s PCRA petition and reinstated Appellant’s
appellate rights nunc pro tunc.
(Trial Court Opinion, filed 4/14/22, at 15-17). On November 7, 2021,
Appellant timely filed a nunc pro tunc notice of appeal. That same day,
Appellant filed a voluntary Rule 1925(b) statement.
On appeal, Appellant raises the following issues for our review:
Whether the evidence presented at trial was sufficient to
establish each and every element of the crime of Violation
of the Uniform Firearms Act, Section 6105.
Whether the jury verdict was against the weight of the
evidence.
Whether the trial court erred by denying Appellant’s pretrial
motion to suppress physical evidence.
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Whether the introduction of fabricated evidence and
perjured testimony violated Appellant’s Due Process rights
and constituted prosecutorial misconduct.
Whether the sentencing court abused its discretion by
imposing a sentence that was not based upon the gravity of
the violation, the extent of Appellant’s record, his prospect
of rehabilitation, nor an assessment of the mitigating and
aggravating factors as noted in 42 Pa.C.S. [§] 9721 of the
Sentencing Code.
(Appellant’s Brief at 8).
In his first and second issues, Appellant argues that the Commonwealth
did not prove that Appellant possessed a firearm. Appellant claims that the
police witnesses merely speculated that Appellant possessed a firearm based
on what they observed in the surveillance video. Although the officers testified
that smoke emanated from Appellant’s jacket pocket, Appellant complains
that the images on the surveillance video were “grainy.” (Id. at 18). Rather
than smoke, Appellant contends that the officers observed “the bullet entering
Appellant’s body and the resultant excretion of clothing fiber or bodily fluid.”
(Id.) Appellant acknowledges the Commonwealth’s evidence regarding
gunshot residue, but he avers that this evidence is not persuasive. Appellant
emphasizes the Commonwealth’s expert’s testimony that “gunshot residue
can follow a bullet for thirty feet,” and Appellant maintains that the residue on
his hands must have resulted from the bullets fired by his attackers. (Id. at
17).
Appellant also argues that the police witnesses provided contradictory
testimony. Specifically, Appellant contends that Detective Johnson testified
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that Appellant’s jacket “was ripped on the right pocket,” but Officer Agudo
testified that Appellant “fired a gun through his left jacket pocket.” (Id.)
Further, Appellant criticizes the testimony from the Commonwealth’s ballistics
expert, claiming it did not demonstrate that three different firearms were used
during the shootout. Appellant concludes that the Commonwealth presented
insufficient evidence to support his conviction, and the conviction was against
the weight of the evidence. We disagree.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that
the evidence establishing a defendant’s participation in a
crime is circumstantial does not preclude a conviction where
the evidence coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment for that
of the fact finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the Commonwealth,
demonstrates the respective elements of a defendant’s
crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
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Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super.
2013)).
Additionally,
The 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 the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the … verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
The Uniform Firearms Act provides, in relevant part, as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an
offense enumerated in subsection (b), within or without
this Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control,
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sell, transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S.A. § 6105(a)(1).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Commonwealth
v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005) (quoting Commonwealth v.
Haskins, 677 A.2d 328, 330 (Pa.Super. 1996)). “Constructive possession is
the ability to exercise conscious control or dominion over the illegal substance
and the intent to exercise that control.” Id. “The intent to exercise conscious
dominion can be inferred from the totality of the circumstances.” Id.It is well established that, as with any other element of a
crime, constructive possession may be proven by
circumstantial evidence. In other words, the
Commonwealth must establish facts from which the trier of
fact can reasonably infer that the defendant exercised
dominion and control over the contraband at issue.
Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa.Super. 2018), appeal
denied, 651 Pa. 10, 202 A.3d 42 (2019) (internal citations and quotation
marks omitted).
Instantly, Appellant stipulated that he is prohibited from possessing a
firearm due to a prior conviction for possession of a controlled substance with
intent to deliver. (See N.T. Trial, 11/14/19, at 162-63). Regarding
Appellant’s constructive possession of the firearm, the trial court elaborated
on this issue as follows:
As Philadelphia Police Officer Mark Wilusz testified to, no
firearm was ever recovered from the 3200 block of
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Shelbourne Street in Philadelphia, where a gunfight
involving three individuals occurred on April 29, 2018.
Philadelphia Police Detective James Gruninger testified,
however, that he recovered other physical evidence,
including multiple fired cartridge casings and bullets. Officer
Wilusz examined the casings and concluded they originated
from two different types of firearms. He also determined
that one of the bullets recovered from the scene must have
originated from a third firearm.
On the night of April 29, 2018, Philadelphia Police Officer
Anthony Agudo responded to the area of the gunfight and
reviewed video footage which depicted it. The footage
showed two black male individuals firing gunshots in the
direction of a third black male individual, who was wearing
a dark colored jacket and blue track pants with a white
stripe down the side. The footage also showed the third
individual raising his left arm inside his jacket pocket with
smoke then coming out of the pocket. Officer Agudo
testified that this indicated to him that the third individual
was shooting back at the other two individuals. Video
footage taken from a different angle also showed the third
individual falling next to the bumper of a blue vehicle after
possibly being shot.
* * *
Detective Gruninger also responded to Temple University
Hospital, where he observed the clothing located near
Appellant. Believing it to be consistent with the third
individual in the video footage, Detective Gruninger had
Appellant’s hands tested for gunshot residue. Philadelphia
Police Officer Tiffany Richardson testified that she conducted
an SEM test for gunshot residue on both of Appellant’s
hands, per Detective Gruninger’s request. Hung Le, a
forensic science and gunshot residue testing expert,
testified that he tested the evidence recovered from
Appellant’s hands and found substances consistent with
gunshot residue on both samples collected from Appellant’s
hands.
The Commonwealth and counsel for Appellant also
stipulated that Appellant was driven to Temple University
Hospital by his girlfriend in a blue Toyota Matrix.
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Philadelphia Police Detective Mark Johnson testified that he
prepared a search warrant for this vehicle. After the warrant
was executed, two jackets were recovered from the vehicle,
including a blue-and-white jacket. Detective Johnson
testified that the right pocket of this jacket was ripped.
Detective Gruninger also testified that he observed a hole in
the jacket with stuffing sticking out of it, which he opined
was likely caused by a bullet.
* * *
Based on the totality of the circumstances, the
circumstantial evidence offered at trial established that
Appellant constructively possessed and used a firearm while
he was ineligible to do so under the Uniform Firearms Act.
(Trial Court Opinion at 19-21) (internal record citations omitted). We accept
this analysis.
Viewing this evidence in the light most favorable to the Commonwealth
as verdict winner, the record supports the inference that Appellant
constructively possessed a firearm. See Sebolka, supra. Further, the court
concluded that the guilty verdict was not shocking. (See Trial Court Opinion
at 23). On this record, we cannot say that the court palpably abused its
discretion in ruling on the weight claim. See Champney, supra. Therefore,
Appellant is not entitled to relief on his sufficiency and weight claims.
In his third issue, Appellant baldly asserts that the police illegally
removed his jacket from the vehicle parked outside the hospital before
obtaining a search warrant. In support of this claim, Appellant cites various
portions of the trial transcripts to demonstrate that the detectives lied about
“the actual circumstances surrounding the search of Appellant’s vehicle.”
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(Appellant’s Brief at 20). Appellant argues:
Detective Gruninger initially testified that he recovered
Appellant’s jacket at the hospital along with Appellant’s
other clothes. N.T. 11/13/19 p. 63-65. Detective Gruninger
then changed his testimony and stated that the jacket was
recovered from Appellant’s vehicle pursuant to execution of
a search warrant. Id. at 63.[2]
(Id.)
Appellant insists that this “inconsistent testimony … exposes the
duplicity of the information presented to the court at the [hearing on the]
motion to suppress, as well as to the jury at trial.” (Id.) Relying on this
testimony, Appellant speculates “that upon seeing the jacket in the vehicle
upon arrival at the hospital, Detective Gruninger removed the jacket and
brought it into the hospital to confront Appellant.” (Id. at 21). Appellant
maintains that the purported warrantless vehicle search violated his
constitutional rights, and no exception to the warrant requirement justified
the warrantless search. Appellant concludes that “the search is unlawful and
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2 We have reviewed the record and note that Appellant’s citations to the trial
transcripts are incorrect. Although Appellant cites to the November 13, 2019
trial transcript, Detective Gruninger did not testify until November 14, 2019.
Setting aside this error, it appears that Appellant is relying on a portion of the
cross-examination of Detective Gruninger. Specifically, defense counsel asked
whether police recovered “the puffy jacket” from Appellant’s vehicle, and
Detective Gruninger confirmed that they did. (See N.T. Trial, 11/14/19, at
64). Immediately thereafter, defense counsel stated, “And you said at the
preliminary hearing you got the puffy jacket from the hospital room; right?”
(Id.) Detective Gruninger agreed. (Id.) Defense counsel continued, “You
never said anything about clothing obtained from the car when you were at
the preliminary hearing; is that right?” (Id.) Again, Detective Gruninger
responded affirmatively. (Id.)
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the evidence recovered should have been suppressed.” (Id. at 23). We
disagree.
The following principles govern our review of an order denying a motion
to suppress:
An appellate court’s standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court,
we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by
those findings and may reverse only if the court’s legal
conclusions are erroneous. Where the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below
are subject to plenary review.
Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal
denied, 647 Pa. 522, 190 A.3d 580 (2018). “[A]ppellate courts are limited to
reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pretrial motion to suppress.” Commonwealth v.
Koonce, 190 A.3d 1204, 1212 (quoting Commonwealth v. Bush, 166 A.3d
1278, 1281-82 (Pa.Super. 2017)). “It is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and the weight to
be given to their testimony.” Id. (quoting Bush, supra at 1282).
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Regarding searches conducted by police,
[b]oth the Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania
Constitution protect individuals from unreasonable searches
and seizures by police in areas where individuals have a
reasonable expectation of privacy. If a person has a
reasonable expectation of privacy in a place, then these
constitutional provisions generally require police to obtain a
warrant to search the place; a search warrant must be
supported by probable cause and issued by a neutral,
detached magistrate. Warrantless searches are
presumptively unreasonable under the state and federal
constitutions.
Commonwealth v. Barr, ___ Pa. ___, ___, 266 A.3d 25, 39-40 (2021)
(internal citations, footnote, and quotation marks omitted).
Instantly, Detective Johnson testified at the suppression hearing
regarding the application for a warrant to search the Toyota Matrix that
transported Appellant to the hospital.3 Detective Johnson explained that
Appellant
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3 We note that the vehicle at issue here was registered to someone other than
Appellant. Nevertheless, the Commonwealth did not argue that Appellant
lacked a privacy interest in the vehicle. Rather, the Commonwealth’s only
argument at the suppression hearing was that the police conducted a valid
search pursuant to a warrant. Under these circumstances, the Commonwealth
effectively conceded the privacy interest, and we will not consider whether
Appellant had a reasonable expectation of privacy in the vehicle searched.
See Commonwealth v. Enimpah, 630 Pa. 357, 368-69, 106 A.3d 695, 701
(2014) (stating it is Commonwealth’s burden to present evidence that
defendant’s constitutional rights were not infringed; Commonwealth may
concede privacy interest, choosing to contest only legality of police conduct;
if it does so, defendant’s “reasonable expectation of privacy” need not be
established); Commonwealth v. Peak, 230 A.3d 1220, 1224 (Pa.Super.
2020), cert. denied, ___ U.S. ___, 141 S.Ct. 1426, 209 L.Ed.2d 150 (2021)
(Footnote Continued Next Page)
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was brought into Temple Hospital by that vehicle. And it
was in front of the ER doors, and it was secured almost
immediately by the officers until we had it towed to … where
I could execute the search warrant.
(N.T. Suppression Hearing, 11/4/19, at 11). Detective Johnson testified that
no one entered the vehicle until police obtained a search warrant. (See id. at
11-12).
Once he obtained the warrant, Detective Johnson searched the vehicle
with other officers. Regarding the items recovered from the vehicle, Detective
Johnson identified a “black puffy coat, which has a blown-out left pocket” that
was found in the back seat. (Id. at 14). Detective Johnson also identified a
“blue-and-white track jacket” that was recovered from inside the vehicle.
(Id.)
Thereafter, Detective Gruninger provided details about other articles of
Appellant’s clothing that police recovered from inside the hospital. Detective
Gruninger testified:
These are clothing that were recovered. There is a pair of
blue track pants with a white stripe down the side, a
hoodie—or a sweat jacket that’s blue and white, a pair of
black thermal pants, a white T-shirt, and also a pair of
sneakers.
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(stating Commonwealth did not make argument regarding Appellant’s
reasonable expectation of privacy in vehicle during suppression hearing; for
that reason, trial court did not address Appellant’s expectation of privacy, or
lack thereof, in its opinion, and this Court could consider issue waived on
appeal).
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(Id. at 31). Nevertheless, Detective Gruninger changed his testimony on
cross-examination. At that time, defense counsel revisited the articles of
clothing recovered from the hospital. Regarding the jacket, Detective
Gruninger added:
I thought about it after the DA asked the question earlier.
If we could go back and ask the question. The blue-and-
white sweat jacket was actually recovered with the jacket in
the vehicle.
(Id. at 36).
In evaluating this testimony, the suppression court determined that the
record did not support Appellant’s claim that the police conducted a
warrantless search of the vehicle. (See Trial Court Opinion at 29). This
factual finding is supported by the record, and we are bound by it. See Ford,
supra. Here, the suppression court was free to credit Detective Johnson’s
testimony regarding the search pursuant to a warrant. Although Detective
Gruninger subsequently provided conflicting statements limited to the
recovery of the blue-and-white jacket, it was within the court’s province as
factfinder to credit the detective’s assertion that he misspoke. See Koonce,
supra. To the extent Appellant relies on Detective Gruninger’s subsequent
trial testimony to support his argument, we emphasize that this Court is
limited to reviewing only the evidence presented at the suppression hearing.
See id. Under these circumstances, we cannot fault the court for denying the
suppression motion. See Ford, supra. Accordingly, Appellant is not entitled
to relief on his third issue.
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In his fourth issue, Appellant argues that the Commonwealth committed
misconduct through “the presentation of knowingly false testimony and
fabricated evidence.” (Appellant’s Brief at 23). First, Appellant contends that
the Commonwealth improperly utilized Detectives Gruninger and Johnson’s
purportedly fabricated statements about the seizure of Appellant’s jacket.
Next, Appellant claims that Officer Agudo’s testimony that he saw a gunshot
come from Appellant’s left pocket was “proven demonstrably false.” (Id. at
24). Further, Appellant complains that the prosecution introduced
“unsupported” ballistics evidence. (Id.) Appellant, however, failed to raise
any objection to this evidence at trial. (See N.T. Trial, 11/13/19, at 23-102;
N.T. Trial, 11/14/19, at 33-103). Thus, this issue is waived.4 See
Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa.Super. 2007), appeal
denied, 595 Pa. 706, 938 A.2d 1052 (2007) (reiterating, “In order to preserve
a claim of prosecutorial misconduct for appeal, a defendant must make an
objection and move for a mistrial”).
In his final issue, Appellant argues that the court imposed an
unreasonably excessive sentence without considering all relevant factors
enumerated in the Sentencing Code, such as Appellant’s characteristics, his
rehabilitative needs, and the gravity of the offense. As presented, Appellant’s
challenge implicates the discretionary aspects of sentencing. See
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4 The trial court also found this issue waived, albeit due to the lack of detail in
Appellant’s Rule 1925(b) statement. (See Trial Court Opinion at 27).
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Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008)
(explaining, “A challenge to an alleged excessive sentence is a challenge to
the discretionary aspects of a sentence”).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary sentencing
issue:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
“[I]ssues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc).
Instantly, Appellant did not raise his claims at the sentencing hearing or
in his post-sentence motion. Thus, Appellant’s final issue is waived. See id.- 18 -
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Nevertheless, Appellant would not be entitled to relief even if he preserved his
claims.
“When imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), cert. denied,
545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the
court should refer to the defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. “Where [PSI] reports
exist, we shall continue to presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Watson, 228 A.3d 928, 936 (Pa.Super. 2020) (quoting Commonwealth v.
Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).
Instantly, Appellant addressed the court at the sentencing hearing.
Appellant took responsibility for possessing the firearm and stated that he
fired “two warning shots” only after the unidentified assailants fired at him.
(See N.T. Sentencing Hearing, 2/14/20, at 14). Despite Appellant’s
statement, the court imposed a sentence of six to twelve years’ imprisonment,
emphasizing:
I have considered the [PSI report], the mental health report,
the submissions by the Commonwealth and defense, prior
record score report, sentencing guidelines, purposes of the
sentencing code.
[Appellant], there are several issues here. One is that
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basically you’ve been dealing drugs, it looks like
consistently, since 1998 as an adult. Before that, as a
juvenile since 1994. It’s been like a business it looks like.
In and out of juvenile facilities. As an adult, you have 19
arrests, 15 convictions, 20 commitments. In the county
prison, state prison, violations, but it’s all for drug dealing.
* * *
I don’t think you ever stopped drug dealing from what I can
tell because the most recent arrest for drug dealing was
January 20th of 2018 and that was when [another jurist]
imposed a sentence of 9 to 23 months of incarceration. This
incident then happened, it looks like, on April 29th of 2018,
which I think was an incident that happened just five months
after the January arrest. I don’t know what’s going on, but
people tell me drugs is not a violent crime, it’s a nonviolent
crime. It’s not. It leads to shootings. I don’t know why
people are shooting at you and you were shooting at people,
but, considering everything else in this case, I don’t think
that the guidelines of 72 to 90 in terms of the—should be
eight or nine years, but there is a major problem. You’ve
been dealing drugs most of your life. I don’t know what else
to say. A shooting on the street like this, I saw the video,
as did the jury many times. I think you should get all the
necessary medical treatment. That has nothing to do with
where you’re at in terms of—and I will send an email to the
state prison people detailing the medical condition,[5] the
medications you’re taking and other things, and ma[k]e
sure that they have that. You need to make sure that they
have that also to follow up on.
What I am going to do is as follows: On the 6105 charge, I
am going to sentence you to a sentence of 6 to 12 years in
the state prison which is in the guidelines. It’s the lowest
end of the guidelines.
(Id. at 14-16).
____________________________________________
5 Earlier in the hearing, Appellant explained that he suffered from “non-
ischemic cardiomyopathy,” and he received a pacemaker for this condition.
(N.T. Sentencing Hearing at 13).
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In its Rule 1925(a) opinion, the court elaborated on the reasons for
Appellant’s sentence:
[The c]ourt followed the fundamental norms of the
sentencing process and appropriately sentenced Appellant
following his VUFA conviction. Prior to sentencing Appellant,
[the c]ourt reviewed Appellant’s [PSI] Report, his Mental
Health Evaluation, the Commonwealth’s sentencing
memorandum, submissions from Appellant’s family,
Appellant’s prior record score, the Sentencing Guidelines
Form required by the Pennsylvania Commission on
Sentencing, and finally, the stated purposes of the
Sentencing Code. The record therefore reflects [the c]ourt’s
careful consideration of the facts of Appellant’s crime and
character. [The c]ourt expressed concerns about
Appellant’s extensive prior record, noting that Appellant had
previously been arrested nineteen times, convicted fifteen
times, violated probation or parole nineteen times, and
committed to prison twenty times, including for violations of
probation or parole.
[The c]ourt additionally considered the facts and
circumstances of VUFA offense by observing the danger of
how drug dealing can and often does lead to gun violence,
as occurred in Appellant’s conviction. Finally, [the c]ourt
stated the need for Appellant to receive proper medical care
in accordance with his health conditions.
(Trial Court Opinion at 25-26).
Here, the record makes clear that the court adequately considered
Appellant’s prior record, the sentencing guidelines, the circumstances
surrounding the firearms conviction, as well as the PSI report. The sentencing
court described its concern for the escalation of Appellant’s drug dealing to
gun violence. Further, the presence of a PSI report allows us to presume that
the court was aware of Appellant’s character and mitigating factors, and the
court’s discretion while using a PSI report should not be disturbed. See
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Watson, supra. On this record, Appellant is not entitled to relief on his final
claim. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2023
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