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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
FREDRICK A. POSTIE, :
:
Appellant : No. 1089 EDA 2014
Appeal from the Judgment of Sentence October 7, 2013,
Court of Common Pleas, Carbon County,
Criminal Division at No. CP-13-CR-0000168-2012
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 30, 2014
Appellant, Fredrick A. Postie (“Postie”), appeals, pro se, from the
judgment of sentence entered on October 7, 2013 by the Court of Common
Pleas of Carbon County, Criminal Division, following his convictions for one
count of retail theft1 and one count of attempt to commit retail theft.2 For
the reasons that follow, we affirm Postie’s convictions, but vacate his
judgment of sentence and remand for re-sentencing.
The trial court summarized the facts and procedural history of this
case as follows:
On July 22, 2011, at approximately 12:05 p.m.,
Officer Joseph David (hereinafter “Officer David”) of
the Mahoning Township Police Department
responded to a call from [Walmart] regarding a retail
1
18 Pa.C.S.A. § 3929(a)(1).
2
18 Pa.C.S.A. §§ 901(a), 3929(a)(1).
*Retired Senior Judge assigned to the Superior Court.
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theft. The [Walmart] Loss Prevention Department
(hereinafter “Loss Prevention) had reported that on
July 22, 2011 at approximately 2:04 a.m., a total of
thirteen (13) Apple iPhones had been stolen from the
electronics section of the store. Each iPhone was
valued at approximately [$599.00], for a total loss of
[$8,254.22]. Officer David testified that he received
surveillance footage from [Walmart] showing the
theft of the iPhones. He had received phone calls
from individuals identifying the man in the video as
[Postie]. Based upon those phone calls, Officer
David reviewed [Postie]’s driver’s license photo on
the police JNET system to compare it to the
surveillance footage. Officer David determined that
[Postie] was the same individual in the footage
obtained from Loss Prevention. The initial criminal
complaint was filed on October 21, 2011, charging
[Postie] with retail theft of thirteen (13) Apple
iPhones.
[Postie] entered a guilty plea on February 4, 2013.
Prior to sentencing, [Postie] filed a petition to
withdraw his guilty plea. [Postie]’s petition was
granted on June 25, 2013 and the matter was listed
for a jury trial commencing on August 5, 2013.
On July 25, 2013, [Postie] filed a “Motion to Exclude
Videos.” Following oral argument on July 31, 2013,
this [c]ourt denied [Postie]’s motion. On July 30,
2013, the Commonwealth filed a “Petition to Amend
Criminal Information” to charge [Postie] with
[c]riminal [a]ttempt – [r]etail [t]heft. On July 31,
2013, after oral argument, this [c]ourt granted the
Commonwealth’s petition and the criminal
information was amended to reflect a count of
[c]riminal [a]ttempt – [r]etail [t]heft.
On August 3, 2013, [Postie] executed a waiver of
counsel form and acknowledged that he had chosen
to act as his own counsel throughout the jury trial.
Attorney Joseph V. Sebelin, Jr., Esquire was
appointed as standby counsel for [Postie]. The jury
trial commenced on August 5, 2013. At the
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conclusion of the trial, the jury returned a verdict of
guilty on [c]ount #1 [r]etail [t]heft – [t]aking
[m]erchandise and a verdict of guilty on [c]ount #2
[a]ttempt – [r]etail [t]heft. Following announcement
of the jury’s verdict, this [c]ourt inquired as to
whether [Postie] would be requesting a pre-sentence
investigation. [Postie] stated that he did not wish to
have a pre[-]sentence investigation report prepared
and sentencing was deferred until October 7, 2013.
On October 7 2013, [Postie] was sentenced to make
restitution to [Walmart] in the sum of [$7,780.00]
and to undergo imprisonment for a period of not less
than one (1) year nor more than thirty (30) months,
from October 7, 2013, in a state correctional
institution. This sentence was to run consecutive to
the sentences previously imposed by the Court of
Common Pleas of Schuylkill County in case number
CP-54-CR-1311-2011 ([r]etail [t]heft – [t]aking
[m]erchandise) and by the Court of Common Pleas
of Northampton County in case number CP-48-CR-
2304-2012 ([c]onspiracy – [b]urglary).
[Postie] filed a post-trial motion for relief on October
17, 2013. Following a hearing on January 8, 2014,
this [c]ourt denied [Postie]’s post-trial motion. A
copy of our [o]rder denying [Postie]’s post-trial
motion was mailed to counsel for the Commonwealth
and [Postie]’s stand-by trial counsel on January 23,
2014. [Postie] was not mailed a copy of the
aforesaid [o]rder until March 7, 2014. On March 21,
2014, [Postie] filed his [n]otice of [a]ppeal.
Trial Court Opinion, 5/27/14, at 2-4 (footnote and record citations omitted).3
3
On the same day Postie filed his notice of appeal, he also filed a petition to
appeal nunc pro tunc based on the trial court’s failure to inform him of the
denial of his post-sentence motions until March 7, 2014. See Petition to
Appeal Nunc Pro Tunc, 3/21/14. On March 27, 2014, the trial court granted
Postie permission to proceed with his appeal nunc pro tunc. See Trial Court
Order, 3/27/14.
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On appeal, Postie raises the following three issues for our review and
determination:
1) Did the [trial court] err in denying exclusion of
two videos introduced by the Commonwealth and
used as evidence of prior bad acts in conjunction
with their intended purpose, that of identification,
where the evidence would be considered cumulative?
2) Is “[c]arry [a]way” an essential element to the
crime of [r]etail [t]heft and is the [s]tatute [v]oid for
[v]agueness as it pertains to the facts of this case?
If so, did the [trial court] err by denying [Postie]’s
[m]otion for [d]irected [v]erdict of [a]cquittal as a
result?
3) Did the [trial court] abuse its discretion and
render an unreasonable sentence when it sentenced
[Postie] strictly on the severity of the offense and by
not articulating its reasoning for the sentence
imposed?
Postie’s Brief at 5.
For his first issue on appeal, Postie argues that the trial court erred by
denying his pre-trial motion in limine seeking to exclude two Walmart
security videos from evidence. Id. at 11-13. Postie claims that the
Commonwealth offered four videos, revealing the following:
One video depicted an individual opening, removing,
[and] placing items from a display case on top of the
display case; two videos showed the same individual
at two separate times, pushing a shopping cart
through the store with merchandise inside; the
fourth video showed the same individual exiting via
the main entrance, carrying no items.
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Id. at 11. Postie sought to exclude the two videos depicting an individual
pushing a shopping cart containing merchandise through the store. Id. at
11-13.
“When reviewing the denial of a motion in limine, we apply an
evidentiary abuse of discretion standard of review.” Commonwealth v.
Stokes, 78 A.3d 644, 654 (Pa. Super. 2013), appeal denied, 89 A.3d 661
(Pa. 2014). Our Court has held that “[a]n 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) (quotations and citations omitted), appeal denied, 95 A.3d 275
(Pa. 2014). “An abuse of discretion may result where the trial court
improperly weighed the probative value of evidence admitted against its
potential for prejudicing the defendant.” Id. (quotations and citations
omitted).
Postie makes two arguments in support of his claim that the trial court
erred in not excluding the two videos at issue. See Postie’s Brief at 11-13.
First, Postie argues that “these two videos had the … potential to prejudice
[him] by introducing inferential evidence of prior wrongs or bad acts[.]” Id.
Postie asserts that the videos caused the jury to infer that he had prior
convictions stemming from the theft of the merchandise observed in the two
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videos, even though he was not charged with stealing that particular
merchandise. See id.
We conclude that Postie has waived this argument on appeal.
“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations
omitted). Here, Postie does not cite any authority for the proposition that
the introduction of the two videos at issue would be improper evidence of
prior bad acts and convictions. See Postie’s Brief at 11-13. Postie does not
cite to Rule 404(b) of the Pennsylvania Rules of Evidence, which addresses
prior bad acts and conviction evidence. See id. Postie also does not explain
how these two videos, which show him pushing a shopping cart containing
merchandise in Walmart contemporaneous to the time that he broke into the
display case containing the iPhones, were evidence of a prior bad act or
conviction. Accordingly, Postie has failed to develop this argument in any
meaningful fashion capable of review, and thus, has waived this claim. See
Johnson, 985 A.2d at 924.
Second, Postie contends that the two videos he sought to exclude
represented needlessly cumulative evidence because the Commonwealth
only sought to introduce the two videos to identify him, the remaining videos
that the Commonwealth introduced were sufficient to identify him, and he
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was willing to stipulate that he was the individual in all of the videos.
Postie’s Brief at 11-13.
Regarding the admission of evidence, this Court has stated the
following:
The threshold inquiry with admission of evidence is
whether the evidence is relevant. “Evidence is
relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more
or less probable, or supports a reasonable inference
or presumption regarding the existence of a material
fact.” Commonwealth v. Spiewak, [] 617 A.2d
696, 699 ([Pa.] 1992). In addition, evidence is only
admissible where the probative value of the evidence
outweighs its prejudicial impact. Commonwealth
v. Story, [] 383 A.2d 155 (Pa. 1978).
Stokes, 78 A.3d at 654 (quoting Commonwealth v. Robinson, 721 A.2d
344, 350 (Pa. 1998)). This Court has further explained,
Otherwise relevant evidence may be excluded if its
probative value is outweighed by its potential for
prejudice. “The probative value of the evidence
might be outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the
jury, undue delay, pointlessness of presentation, or
unnecessary presentation of cumulative evidence.”
Antidormi, 84 A.3d at 750 (quoting Commonwealth v. Page, 965 A.2d
1212, 1220 (Pa. Super. 2009)); see also Pa.R.E. 403. For cumulative and
corroborative evidence, our Court has stated the following:
Evidence may be excluded if its probative value is
outweighed by the “needless presentation of
cumulative evidence.” Pa.R.E. 403. We define
cumulative evidence as “additional evidence of the
same character as existing evidence and that
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supports a fact established by the existing evidence.”
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989
(Pa. Super. 2007) (quoting Black’s Law Dictionary,
Seventh Edition, at 577), appeal denied, [] 944 A.2d
756 ([Pa.] 2008). Evidence that strengthens or
bolsters existing evidence is corroborative evidence;
we have previously explained that corroborative
evidence is not cumulative evidence. See id.
Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa. 2012).
Assuming arguendo that Postie is correct and the two videos he sought
to exclude were needlessly cumulative, we conclude that any such error on
the part of the trial court was harmless. Harmless error exists, inter alia,
where “the erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously
admitted evidence.” Commonwealth v. Reese, 31 A.3d 708, 719
(Pa. Super. 2011).
Here, if the alleged erroneously admitted videos were needlessly
cumulative, then they were cumulative of other untainted evidence. Postie
readily admits that he was the individual observed in the first video
referenced above breaking into the display case and removing the thirteen
stolen Apple iPhones from the case. See N.T., 8/5/13, at 25. Thus, we
conclude that any alleged error by the trial court in admitting the two videos
at issue would have been harmless. Accordingly, this argument does not
entitle Postie to any relief.
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In his second issue on appeal, Postie raises three arguments relating
to the retail theft statute, 18 Pa.C.S.A. § 3929(a)(1). See Postie’s Brief at
14-19. First, Postie asserts that “takes possession of” and “carries away”
are “two distinct and separate elements” of the retail theft statute and
therefore, the statute requires the Commonwealth to prove beyond a
reasonable doubt that he “carried away” the thirteen Apple iPhones from the
electronics department or the store. See id. at 14-18. Second, Postie
contends that the evidence was insufficient to sustain his conviction for retail
theft because there was no evidence that he “carried away” the thirteen
Apple iPhones from the electronics department or the store. See id. at 17-
18. Third, Postie argues that the trial court did not instruct the jury that
“carries away” was an essential element of retail theft. See id. at 18-19.
We begin Postie’s second issue by addressing his challenge to the
sufficiency of the evidence.4 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
4
Because we conclude that the evidence was sufficient to establish that
Postie both “took possession of” and “carried away” the thirteen Apple
iPhones, we need not address Postie’s argument that the statute requires
evidence of both of these elements.
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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.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted).
Section 3929(a)(1) of the Crimes Code states the following:
(a) Offense defined.--A person is guilty of a retail
theft if he:
(1) takes possession of, carries away, transfers
or causes to be carried away or transferred,
any merchandise displayed, held, stored or
offered for sale by any store or other retail
mercantile establishment with the intention of
depriving the merchant of the possession, use
or benefit of such merchandise without paying
the full retail value thereof;
18 Pa.C.S.A. § 3929(a)(1).
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The sole element of section 3929(a)(1) that Postie argues the
Commonwealth did not prove is that he carried away the thirteen Apple
iPhones from the electronics department or the store. Postie’s Brief at 17-
18. We conclude that there is sufficient evidence in this case that Postie
both took possession of and carried away the thirteen Apple iPhones from
the store and therefore committed retail theft. Postie readily admits that he
was the individual observed in the video breaking into the display case and
removing the thirteen stolen Apple iPhones from the case. See id. at 11-
12; N.T., 8/5/13, at 25. Additionally, Austin Diehl, an Asset Protection
Associate at the Walmart store in question testified that Walmart never
recovered the thirteen Apple iPhones and that Walmart never sold them
from a different department in the store. N.T., 8/5/13, at 30, 33-34. Our
standard of review requires us to evaluate the record in the light most
favorable to the Commonwealth as the verdict winner and the
Commonwealth may sustain its burden of proof by means of circumstantial
evidence. See Franklin, 69 A.3d at 722-23. Postie admits that he took
possession of the merchandise and the evidence established that it was
never again recovered or sold by Walmart. Since the iPhones were no
longer in the Walmart store, the logical inference is that the merchandise
acquired by Postie by breaking into the display case was removed from the
store by him. Thus, Postie’s sufficiency of the evidence claim fails.
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For his third argument in his second issue, Postie challenges the trial
court’s jury instructions, arguing that the trial court did not instruct the jury
that “carries away” was an essential element of retail theft. Postie’s Brief at
18-19. When assessing a trial court’s jury instructions, we adhere to the
following standard.
[W]hen evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole,
and not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion
in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately,
and accurately presented to the jury for its
consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is
there reversible error.
Antidormi, 84 A.3d at 754 (quoting Commonwealth v. Trippett, 932 A.2d
188, 200 (Pa. Super. 2007)). We conclude that Postie’s claim is without
merit. The trial court plainly included the term “carried away” in its
instructions to the jury for Postie’s charge of retail theft. N.T., 8/5/13, at
119. Thus, Postie is not entitled to any relief for his second issue on appeal.
For his final issue on appeal, Postie challenges the discretionary
aspects of his sentence. Postie’s Brief at 20-26. This Court does not review
such issues as a matter of right. “An appellant must satisfy a four-part test
to invoke this Court’s jurisdiction when challenging the discretionary aspects
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of a sentence.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265
(Pa. Super. 2014). The appellant must satisfy all of the following:
(1) the appellant preserved the issue either by
raising it at the time of sentencing or in a post[-
]sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
appellant raises a substantial question for our
review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). A substantial question
exists when, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).
Here, Postie preserved his discretionary aspects of sentencing issue by
raising it in a post-sentence motion. See Post-Trial Motion for Relief,
10/24/13, ¶¶ 16-17. Postie also filed a timely notice of appeal. Further,
Postie set forth a concise statement of reasons relied upon for the allowance
of his appeal pursuant to Rule 2119(f). See Postie’s Brief at 20.
Thus, we must determine whether Postie’s discretionary aspect of
sentencing claims raise a substantial question for our review. First, Postie
asserts that the trial court failed to state its reasons on the record for the
sentence that it imposed. Id. at 20-26. A claim that the trial court failed to
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sufficiently state on the record its reason for the sentence that it imposed
raises a substantial question for our review. Commonwealth v. Malovich,
903 A.2d 1247, 1252-53 (Pa. Super. 2006); Commonwealth v. Simpson,
829 A.2d 334, 338 (Pa. Super. 2003). Second, Postie contends that the trial
court did not consider the factors of section 9721(b) of the Sentencing Code
in sentencing him. Postie’s Brief at 20-26. A claim that the trial court did
not consider the factors of section 9721(b) in sentencing him likewise raises
a substantial question. Commonwealth v. Cartrette, 83 A.3d 1030, 1042-
43 (Pa. Super. 2013) (en banc); Commonwealth v. Dodge, 77 A.3d 1263,
1272 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). Because
Postie has complied with the technical requirements for consideration of a
challenge to the discretionary aspects of a sentence, we will consider his
claim on its merits.
Our standard of review when considering discretionary aspects of
sentencing claims is as follows:
Sentencing is a matter vested in the sound discretion
of the sentencing judge. The standard employed
when reviewing the discretionary aspects of
sentencing is very narrow. We may reverse only if
the sentencing court abused its discretion or
committed an error of law. A sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
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arrived at a manifestly unreasonable decision. We
must accord the sentencing court’s decision great
weight because it was in the best position to review
the defendant’s character, defiance or indifference,
and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
quotations and citations omitted).
We conclude that the sentencing court abused its discretion in
sentencing Postie. Section 9721(b) of the Sentencing Code states, in
pertinent part, the following:
(b) General standards.-- … the court shall follow
the general principle that the sentence imposed
should call for confinement that is consistent with
the protection of the public, the gravity of the
offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative
needs of the defendant. … In every case in which the
court imposes a sentence for a felony or
misdemeanor, modifies a sentence, resentences an
offender following revocation of probation, county
intermediate punishment or State intermediate
punishment or resentences following remand, the
court shall make as a part of the record, and disclose
in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b). Thus, “a sentencing court must state on the record
its reasons for imposing sentence.” Malovich, 903 A.2d at 1253.
Additionally, “sentencing is individualized” as the sentencing court must
“impose a sentence that is ‘consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.’”
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Commonwealth v. Walls, 926 A.2d 957, 962-63 (Pa. 2007) (quoting 42
Pa.C.S.A. § 9721(b)).
Here, the certified record on appeal reveals the following. 5 At his
sentencing hearing, the sentencing court began by asking Postie if there was
anything he would like the court to consider prior to imposing a sentence.
N.T., 10/7/13, at 2. After Postie answered no, his standby counsel informed
the sentencing court of Postie’s prior record score and offense gravity score.
Id. at 2-3. The Commonwealth then informed the sentencing court of the
sentence it sought and the amount of restitution that Walmart requested.
Id. at 3-4. The sentencing court then informed Postie of his sentence and
proceeded directly to providing him with his post-sentence rights. Id. at 4-
7. At no point did the sentencing court state on the record its reasons for
the sentence that it imposed or indicate that it considered the protection of
the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the
defendant. See id. at 2-9; see also 42 Pa.C.S.A. § 9721(b). Accordingly,
we must vacate Postie’s sentence and remand for re-sentencing. Upon
5
Notably, “[t]he sentencing judge can satisfy the requirement that reasons
for imposing sentence be placed on the record by indicating that he or she
has been informed by the pre-sentencing report; thus properly considering
and weighing all relevant factors.” Commonwealth v. Fowler, 893 A.2d
758, 767 (Pa. Super. 2006) (quoting Commonwealth v. Boyer, 856 A.2d
149, 154 (Pa. Super. 2004)). However, in this case, the sentencing court
did not review a pre-sentence report because Postie waived his right to a
pre-sentence investigation. See N.T., 8/5/13, at 143-44.
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remand for re-sentencing, the trial court is free to impose any legal sentence
it deems appropriate so long as it sufficiently states its reasons on the record
for the sentence imposed and indicates that it has considered the factors set
forth in section 9721(b).
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2014
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