J.A22036/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
GAIL L. SCHNEIDER, :
:
Appellant : No. 1593 MDA 2013
Appeal from the Judgment of Sentence June 24, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division No(s).: CP-40-CR-0003729-2010
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 16, 2015
Appellant, Gail L. Schneider, appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas following a jury trial
and her convictions for arson endangering persons,1 arson endangering
property,2 reckless burning endangering personal property,3 criminal
mischief,4 and arson of inhabited building.5 Appellant contends the trial
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3301(a)(1)(i).
2
18 Pa.C.S. § 3301(c)(2).
3
18 Pa.C.S. § 3301(d)(2).
4
18 Pa.C.S. § 3304(a)(1).
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court erred in (1) denying her motion in limine to preclude the
Commonwealth from introducing evidence pursuant to Pa.R.E. 404(b); (2)
denying a request for a cautionary jury instruction; (3) allowing the
Commonwealth to present an improper closing argument; (4) finding the
evidence sufficient; (5) finding the verdict was not against the weight of the
evidence; (6) denying the motion for judgment of acquittal; and (7)
imposing a manifestly excessive sentence. Appellant also contends counsel
was per se ineffective for failing to object during the Commonwealth’s
closing argument. We affirm.
The facts established at the jury trial were as follows: David Basala, a
former firefighter and freelance photographer/videographer testified that he
went to the location of the fire to take a video of it.6 N.T., 4/15/13, at 5-7.
He heard about the fire on the dispatch radio. Id. at 6. He took a video of
the fire and turned it over to the Pennsylvania State Police at Hazelton. Id.
at 8. He reviewed the video prior to his testimony and it accurately depicted
the fire he videotaped the night of the incident. Id.
Allen Culp was staying with his fiance on the night of the fire in a
building next to the site of the fire. Id. at 11. He could see the rear
stairway of the building engulfed in flames. Id. at 13. He and another
5
18 Pa.C.S. § (a)(1)(ii).
6
The fire took place at the Lantern Lane Building located in Conyngham,
Pennsylvania. Id. at 11.
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gentleman entered the building, although there was no light, to see if there
were people inside the building. Id. at 15. He had to exit the building due
to the conditions. Id. at 16-17.
Barbara Reese,7 a ninety-five year old former resident of the Lantern
Lane Building, lived on the second floor of the building at the time of the
fire. Id. at 27. She described the stairway she accessed to reach her
apartment. Id. at 28. There was a chair on the landing. Id. The top door
of the stairway was kept locked. Id. The bottom door by the parking lot
was never locked. Id. Ms. Reese knew Appellant. Id. at 29. She was
awakened by the fire alarm and called 9-1-1. Id. at 30-31. She exited her
apartment from a window and climbed a ladder to get onto the roof. Id. at
32. The firemen on the scene came to her assistance. Id. Her 9-1-1 call
was played for the jury. Id.
Nellie Stratts, a ninety-four year old resident of the building at the
time of the fire, woke after hearing an alarm and saw smoke pouring into
her apartment. Id. at 43. She called 9-1-1 and checked on her neighbors.
Id. She heard someone say to get down on her knees and crawl to the front
of the building. Id. at 44. She was carried out of the building. Id.
7
There were three other tenants in the building, Jeffrey Antolick, Nicole
Buak and Nellie Stratts. N.T., 4/15/13, at 153. There were four commercial
tenants in the building, Falvello Law Firm, Richard Grovich, DMD, Navigate
Financial Advisors, and M & L Trucking. Id. at 596-97.
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Richard Bognar, a volunteer fireman and paid EMT for the Medic Unit
of Butler Township and Conyngham Borough, arrived at the scene and
described heavy smoke throughout the building. Id. at 59, 61. He and
another firefighter rescued Ms. Reese from the roof. Id. at 64. All persons
were accounted for and he ordered all firefighters out of the building. Id. at
65. The alarm came in at 2:30 a.m. and they were still putting water on the
fire at 9:00 a.m. Id. He had been a fireman for approximately thirty years.
Id. at 69. He had responded to hundreds, thousands of fires. Id. He
ranked this fire within the top ten. Id.
Joel Michael Mummie, a volunteer fireman for twenty-four years,
stated it was one of the worst fires he had seen. Id. at 73, 80. “It was a
situation where it was just an act of God that nobody got killed.” Id. at 80.
Shawn Hilbert was qualified as an expert in the area of fire
investigation and determination of origin and cause and testified for the
Commonwealth. Id. at 97. He arrived at the scene on the date of the fire
at 7:08 a.m. Id. at 102. He met with the property owner, Kenneth
Temborski. Id. at 103. The owner stated he had not performed any recent
electrical work on the property. Id. He took numerous photographs of the
property. Id. at 106. There was extensive damage in the area where the
chair that Ms. Reese mentioned was located. Id. at 122-23. The extensive
damage in this area led him to believe that this was the origin of the fire.
Id. at 123. There was greater damage in the area where the chair was
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located. Id. at 131. The damage to the floor joists indicated that the fire
was burning in a downward fashion. Id. at 135. He stated the
fire was caused by human hands introducing a competent
ignition source, such as an open-flame device, matches, a
lighter, anything that produces a flame and placing the
flame in direct contact with combustible materials, namely,
the straight-leg wooden chair with the associated
polyurethane cushions on it and igniting that on fire, and
the fire then progressed from there, and resulted in the
damage that you all saw today.
Id. at 155.
Paul Savage was a senior fire and explosion consultant for Project
Time and Cost Forensic Consulting Service and also testified for the
Commonwealth. Id. at 268. He was recognized by the court as an expert in
the area of fire investigation, and specifically, the determination of origin
and cause. Id. at 272, 274. He went to the scene of the fire on September
8, 2010. Id. at 277. The first floor of the building sustained “water damage
from the firefighting effort . . . but there was very little fire damage
anywhere on the first floor or the ceilings or any of the devices, electrical
devices or anything in the entire first floor.” Id. at 280. He believed that he
was dealing with a fire that originated on the second floor. Id. at 281. He
stated:
The more I walked back and forth, up and down the
hallway . . . you couldn’t get away from the fact that the
burn patterns that came from the most severe to less
severe came from in that stairway on the landing area and
traveled either up through the roof and into the common
roof over the second floor before it collapsed . . . .
Everything─the burn patterns that you are so used to
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seeing and so trained to see, would send you right back
into that landing way all the time; so, I knew I was looking
[sic] this had to be the area based on the most severe
damage . . . .
* * *
The only thing that I was told is that there is a chair
upstairs in that landing, and it’s basically just used for
tenants of the second floor to come and go. . . . That was
the most common way they would come and go. They
would go in this downstairs door, which I told [sic] was not
a locking door . . . .
Id. at 288, 290.
He eliminated electrical wires as the cause of the fire. Id. at 293-308,
315. Examining a photograph of the area, he stated: “The greatest damage
to the floor joist is further out towards the wall where this chair is reported
to be back in that corner or somewhere along that back wall. For that
reason, and other burn patterns in that room, and the lack of damage on
that wire that I did not feel when I was there─it’s my belief that that area of
damage is from fire effect and fire travel, not fire cause.” Id. at 309.
He took samples of the debris in the building and submitted them to a
certified lab for analysis. Id. at 316. The report indicated that they were
negative for ignitable or flammable liquids. Id. at 317. He opined as follows
as to the cause of the fire:
My opinion is that based on my scene observations and
the lack of some things which was [sic] failures in electrical
components, burn patterns at the scene, burn patterns in
that second floor, understanding that there was a chair
apparently similar to what we have here in the courtroom
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that was in that corner as a fuel package in that corner,
and nothing else there as a heat source . . . .
I didn’t see anything else that was going to be a
competent heat source to start this fire in the area that I’m
considering . . . . [T]his is an incendiary fire and it started
by human hands with a manually contacted open flame, be
it, a match or lighter igniting other combustibles . . . . It
could be paper, cardboard, any of those type properties.
Whether they’re at the scene and used or whether
somebody brings them into the scene to ignite them to
cause for [sic] this fire, those items are ignited at or about
or on top of this chair as a cause for this fire.
Id. at 317-18.
Appellant presented John Michael Agosti, President and Owner and Fire
analyst for John Michael Agosti and Associates. Id. at 357. He testified as
an expert in the field of fire investigation and determination of cause and
origin. Id. at 368. He disagreed with Corporal Hilbert’s opinion as to the
cause of the fire. Id. at 381. Corporal Hilbert’s opinion was not based on
any physical evidence that he had “or on sound fire science preference
books, and he did not conclusively rule out accidental causes . . . .” Id.
Because he did not exclude out accidental causes, “[i]t should be an
undetermined cause.” Id. He continued:
We have a lot of undetermined fires across the United
States. Approximately 30 percent of all fires are
undetermined. There’s a reason they’re undetermined.
They started from something; but, the reason they’re
undetermined is because the fire may well have destroyed
any evidence to support what the cause was; so you can’t
come up with a cause, if you can’t prove that it was this,
that or the other.
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So, as far as Corporal Hilbert, his cause is a human
being taking a match or a lighter and igniting the chair.
We don’t have any information or witnesses of a human
being in that stairwell. We don’t have the lighter or the
match, and we don’t even have the chair. So he has no
physical evidence or proof that that ignition scenario took
place; yet, we have electrical components, numerous
electrical components in that concealed floor space that
were not properly eliminated; and, we know electricity is a
competent ignition source. We have actually five breakers
tripped; so, we know those circuits were energized. They
were flowing electricity.
Id. at 381-82. He agreed with some of Mr. Savage’s opinions, but not his
opinion as to cause and origin for exactly the same reasons as he disagreed
with Corporal Hilbert. Id. at 382-83.
On cross-examination by the Commonwealth, he stated he was not
aware if Appellant made any efforts to get into the building and examine it
while it was still standing. Id. at 487. When he conducted the test burn on
the polyurethane foam, he did not use the Scientific Method. Id. at 489. He
stated: “I think I described in my report that I conducted a non-scientific
test just for observation to develop some observations of the polyurethane
foam.” Id. When using Scientific Methods to do investigations, you test
hypotheses and use deductive reasoning. Id. The best way to investigate
origin and cause of a fire is the Scientific Method. Id. at 525.
Nicole Laura Buak, a resident of the building, testified that the chair
was located on the landing at the top of the stairwell. Id. at 602. The door
at the bottom of the stairwell was never locked. Id. at 604. Appellant lived
in the apartment next to her. Id. She had previous problems with
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Appellant. Id. at 605-06. She testified regarding an incident that occurred
on September 8, 2009. She looked out of her window at approximately
11:45 p.m. and saw Appellant outside of the apartment building near her car
in the parking lot. Id. at 606. Appellant was screaming and cursing on her
cell phone. Id. A policeman approached her and told her to go home and
be quiet. Id.
Appellant came back to her apartment and the yelling and cursing
continued and Ms. Buak called the police. Id. at 607. The same officer
returned and Ms. Buak went to speak with him. Id. The Officer told Ms.
Buak to return to her apartment and he went to approach Appellant. Id.
She again heard noise outside and saw Appellant in the parking lot near her
car. Id. at 608. Ms. Buak and her fiancé, Leo DeLucca, exited the
apartment and “noticed the word, die, was scribed into our front door.” Id.
at 608, 614. They exited the building and went to the car. Id. at 610. Her
fiancé noticed there was a scratch on the vehicle. Id. at 611. Ms. Buak
gave a statement to the police. Id. at 612. Appellant was cited for the
incident. Id. at 613. Leo DeLucca also testified about the incident at trial
corroborating the same facts. See id. at 618-23.
Kenneth John Temborski, the owner of the building, testified. Id. at
623, 624. At the time of the fire, there were four commercial tenants in the
building and four residential tenants. Id. at 625. He did upgrades to the
property since he purchased it. Id. at 626. There was new carpeting and
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new windows. Id. He installed new appliances, microwaves, stoves and
refrigerators. Id. at 626-27. He lived about 300 yards from Lantern Lane
and could see the back of the building from his windows. Id. at 630.
Appellant was a tenant in the building for approximately ten months until
September of 2009 when she was evicted.8 Id. at 635, 636. The reason for
the eviction was the incident with Nicole Buak. Id. at 636.
Mr. Temborski inspected the apartment after she vacated it and “there
was substantial damage to the apartment. The cabinet doors were kicked
in. There was dog feces all over the walls, on the carpets, and holes
punched in─kicked in the walls of the closets, like, in the drywall.” Id. at
637. He informed Appellant that he would be keeping her security deposit
and she filed a landlord/tenant complaint. Id. Appellant filed a
landlord/tenant complaint. Id. The outcome of the hearing was in his favor.
Id. at 645. Following the hearing, Mr. Temborski testified “[s]he was very
dissatisfied; and when we were ready to walk out of the courtroom she said,
This ain’t over.” Id. at 646.
Matthew Rishkofski, owner of Bandt’s Roadhouse, a bar/ restaurant in
Berwick, asked Appellant to leave the bar on the night of September 4,
8
We note that the Commonwealth asked Mr. Temborski why Appellant was
only a tenant for ten months and he responded “There were several
complaints─” The Commonwealth asked for sidebar and informed the court
they were not looking for that answer and asked to redirect the witness with
a leading question. Id. at 635-36. The court agreed and the sidebar
concluded. Id. at 636.
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2010. Id. at 665. She was angry and left at approximately 11:00 p.m. Id.
at 666.
Eugene Rafalli, a police officer, testified that on the evening of
September 4th into September 5th, he was at a bar, Cuz-N-Joe’s Bar and
Pub in Conyngham, across the road from the Lantern Lane Building. Id. at
667. He was not in his capacity as a police officer at the time. Id. at 669.
He had told one of the troopers that had interviewed him in this case that
Appellant did not appear intoxicated. Id.
Brittany Platukas-Heimo, an employee at the bar on that date, testified
that Appellant had frequented the bar several times and they had talked.
Id. at 674. She did not remember exactly what she told the police on the
night of the incident, three years ago. Id. at 676. The police report
indicated that she told them Appellant appeared intoxicated. Id. she
testified that she did not remember but that Appellant “was acting a little
strange.” Id.
Joan Nevedal, at the time of the incident, was employed by the
Pennsylvania State Police as an intelligence analyst. Id. at 710. She was
assigned to the computer crime unit. Id. She testified “as an expert in the
area of computer forensic examination.” Id. at 713. She examined
Appellant’s Sony Vaio desktop computer. Id. at 715. There were two
general arson searches on Appellant’s computer. Id. at 717. They were
“arson lighter fluid and how to blow up a car.” Id.
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She also analyzed Appellant’s Apple iPhone. Id. at 724. In response
to the text, “I told you [Mr. Temborski] was a douche. He needs a good
beating. I wish I could give him [sic] myself. I have too much to lose.” Id.
at 727. Appellant responded: “Well, paybacks are a bitch. I’m holding onto
the apartment key as he owes me dollar signs. [H]e will not reimburse me
monies that are due and owing to me, six days worth. So he’ll get his keys
when I’m good and ready to give them back.” Id.
The parties stipulated that surveillance video dated September 4, 2010
from the PNC Bank shows Appellant’s vehicle passing the PNC Bank on Main
Street in Conyngham at 1:58 a.m. on September 5, 2010. Id. at 751.
James Surmick, a Pennsylvania State Police trooper, testified. Id. at
752. He went to the scene of the incident on September 5, 2010. Id. at
754. He interviewed Appellant at the station house. Id. at 759. She told
the trooper that she was not in Conyngham on the night of the fire, “without
a doubt.” Id. at 760, 764. Appellant told him she had a white Honda. Id.
at 762. She had gone to two bars in the Berwick area on the night of
September 4th. Id. at 763. She left Bandt’s Roadhouse sometime between
one and one-thirty and he believed she said she went home. Id. She said
she learned about the fire from local media. Id. at 764.
The trooper had interviewed the bartenders of Cuz-N-Joe’s in
Conyngham and they indicated they knew Appellant. Id. at 764. They
indicated that on the night of the fire she had been in the bar. Id. at 764-
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65. He confronted Appellant with this information and “[s]he admitted to
lying, and she said she had lied because she was scared.” Id. at 765. She
said she did not go near the Lantern Lane building that night. Id. She went
to her pet grooming shop to drop off boxes. Id. The video from PNC Bank,
shows Appellant “departing Conyngham on Main Street, and this PNC Bank is
just down the street from the Cuz-N-Joe bar and from Lantern Lane, and it
shows her departing Conyngham at 1:58 in the morning on September the
5th.” Id. at 770.
Appellant testified that she did not set the fire at Lantern Lane. Id. at
824. She stated that she was scared of being accused of the fire because of
her past relationship with Ms. Buak and Mr. Temborski and the eviction. Id.
at 825. She was angry with Mr. Temborski because she felt he was cheating
her out of her money. Id. at 840. When she heard that the Conyngham fire
was ruled arson, she looked up arson in the Conyngham area on her iPhone
and computer. Id. at 877. She stated that she didn’t “want to know how to
blow up a car. [She] was curious.” Id. at 878. She left the bar at 2:00
a.m. Id. at 882.
The trial court summarized the procedural history of this case as
follows:
On April 24, 2013, the jury returned verdicts of guilty on
all counts. A Pre-Sentence Investigation (PSI) was
ordered to be completed by the Luzerne County Adult
Probation and Parole Department, and a sentencing date
was scheduled.
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A sentencing hearing commenced on June 24, 2013,
with the Commonwealth presenting the testimony of six
witnesses, and [Appellant] presenting the testimony of two
witnesses for this [c]ourt’s consideration. . . . [Appellant
was sentenced] to an aggregate term of incarceration of
fourteen (14) to twenty eight (28) years in a state
correctional institution. [Appellant] was subsequently
advised by this [c]ourt of her post-sentence rights before
the hearing concluded.
On July 3, 2013, [Appellant] filed a Motion for Post-
Sentence Relief, and the Commonwealth filed a response
thereto on July 8, 2013. By Order of August 14, 2013, we
denied [Appellant’s] Motion for Post-Sentence Relief and
again advised her of her appellate rights.
Trial Ct. Op., 12/17/13, at 1-2 (unpaginated). This timely appeal followed.
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal and the trial court filed a responsive opinion.
Appellant raises the following issues for our review:
I. The trial court erred in admitting non-relevant and
prejudicial evidence by denying [Appellant’s] motion in
limine and response to the Commonwealth’s 404(B) notice
to preclude any and all computer and iPhone searches
related to arson that were in unallocated clusters and could
not be dated and by allowing testimony at trial related to
the searches on her compter and iPhone that specifically
mentioned how to “blow up a car” and accelerants[.]
II. The trial court erred in denying [Appellant’s] request for
a cautionary instruction to the jury regarding the questions
asked of [Appellant] during her testimony about Evelyn
Welsko, which allowed the jury to assume facts not
admitted through a witness[.]
III. The trial court erred in allowing the Commonwealth to
present an improper closing argument, in that the
prosecutor played the audio of the backdraft video and
argued it during her closing, when such audio was never
presented through testimony at trial[.]
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IV. The evidence presented by the Commonwealth was
insufficient to establish the elements of each of the
offenses charged when apart from her mere presence in
the location of the fire, and having left the area
approximately thirty-four (34) minutes before the fire was
called in to 911, no evidence established that [Appellant]
set this fire or that it was even set by a human hand when
Corporal Hilbert did not conduct a thorough fire
investigation to rule out an electrical fire[.]
V. The verdict of the jury was against the weight of the
evidence when the evidence only established that
[Appellant] was in the location of the fire approximately
thirty-four (34) minutes before the fire was called in to
911[.]
VI. The trial court erred in denying her motion for
judgment of acquittal as to cou[n]t 5, arson-reckless
burning as it relates to Mr. Temborski’s pecuniary loss,
which is covered by count 6 and also to which no
testimony was presented regarding his personal items
affected by this fire[.]
VII. The 14 to 28 year sentence was manifestly excessive
when the court focused almost exclusively on the
knowledge of the risk of harm to firemen, the knowledge
of the risk of harm to the victims, the age of the victims,
the financial damage to the building, and emotional
damage to the victims and failed to give appropriate
meaningful consideration to, among other things, the
legislature’s account for this through the sentencing
guidelines, the fact that no testimony was presented to
show [Appellant] was aware that elderly victims still
resided in the building and [Appellant] was ordered to pay
restitution therefore by using the financial damage as an
aggravator the court engaged in double dipping[.]
VIII. Trial counsel’s failure to object during the
Commonwealth’s closing argument to the Commonwealth’s
introduction of the audio portion of the backdraft video and
improper argument by the prosecutor, when such audio
was never presented through testimony at trial was per se
ineffectiveness.
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Appellant’s Brief at 11-12.
First, Appellant contends the trial court erred in denying her motion in
limine to preclude the Commonwealth’s Pa.R.E. 404(b)9 evidence. In the
motion in limine, Appellant averred, inter alia, that the Commonwealth’s
forensic computer expert, Joan Nevedal, should not be permitted to testify
that she searched for articles related to arson. Appellant argued that
because the expert could not testify as to the date of the searches, the
evidence was not relevant to the current charges. Def.’s Mot. In Limine,
1/27/12, at 3 (unpaginated).
Instantly, Appellant renews the argument the evidence of her
computer and iPhone searches related to arson should not have been
admitted. Appellant’s Brief at 25. She avers that because the intelligence
analyst who testified at trial was unable to give a specific date for the
searches, the searches could have taken place before or after the alleged
arson. Id. at 28.
On January 4, 2013, the trial court entered an order which provided:
“defense counsel motions─denied w/o prejudice[,] matters addressed @
time of trial.” Order, 1/4/13. As a prefatory matter we consider whether
Appellant has waived this issue.
Pennsylvania Rule of Evidence 103 provides in pertinent part:
9
We note that Pa.R.E. 404(b) has been amended, effective March 18, 2013.
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(a) Preserving a Claim of Error. A party may claim
error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or
motion in limine; and
(B) states the specific ground, unless it was apparent
from the context[.]
* * *
(b) Not Needing to Renew an Objection or Offer of Proof.
Once the court rules definitively on the record─either
before or at trial─a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.
Pa.R.E. 103(a)(1)(A)-(B), (b)10 (emphasis added).
In Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013), appeal
denied, 89 A.3d 661 (Pa. 2014), the appellant filed a motion in limine to
exclude certain evidence. Id. at 651. The court denied the motion,
following oral argument. Id. The Commonwealth argued “the matter is
waived because although appellant filed a pre-trial motion in limine seeking
exclusion of the evidence, he did not make an objection on the record to the
court’s ruling on the motion, nor did he object when the evidence was
introduced at trial.” Id. at 652. This Court rejected the Commonwealth’s
argument, citing Pa.R.E. 103, and found: “[The a]ppellant preserved the
issue by litigating the pre-trial motion in limine, and was not required to
object to the trial court’s ruling on the motion or place an objection on the
10
We note that Pa.R.E. 103 was replaced, effective March 18, 2013.
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record at trial in order to preserve the issue for appeal.” Stokes, 78 A.3d
at 652.
In the instant case, unlike Stokes, the trial court did not definitively
deny the motion in limine. See Pa.R.E. 103(b). The trial court collectively
denied the defense motions without prejudice to address the matters at
the time of trial. See Order, 1/4/13. Without prejudice is defined as
“without loss of any rights; in a way that does not harm or cancel the legal
rights or privileges of a party.” Black’s Law Dictionary 1740 (9th ed. 2009).
Appellant’s motion in limine did not preserve the issue. See Stokes, 78
A.3d at 652.
At trial, the Commonwealth called Nevedal to testify. Appellant did not
make a timely objection for the trial court to address the matter. See N.T.
709-38. Therefore, we find the issue waived. See Pa.R.E. 103(b); Stokes,
78 A.3d at 652.
Second, Appellant contends the trial court erred in denying her request
for a cautionary instruction in relation to her testimony about telephone calls
she made to her friend, Evelyn Welsko, about the fire. Appellant’s Brief at
30. Specifically, Appellant avers the court should have given the following
instruction: “The questions that counsel put to the witnesses are not
evidence. . . . You should not guess that a fact is true just because one of
the attorneys or I ask a question about it. It is the witnesses’ answers that
provide the evidence. . . .” Id. at 31. She concedes that “the trial court
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gave this instruction at the close of trial . . . .”11 Id. Appellant avers the
instruction should have been given immediately following the objectionable
testimony. Id.
As a prefatory matter, we consider whether Appellant has waived this
issue.
Rule 2119(a) of the Rules of Appellate Procedure requires
a properly developed argument for each question
presented. This requires, among other things, a discussion
of and citation to authorities in the appellate brief and “the
principle for which they are cited.” See Pa.R.A.P. 2119(a),
(b). Failure to conform to the Rules of Appellate Procedure
results in waiver of the underlying issue. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262
(Pa. Super. 2014) (en banc).
11
At trial, the court instructed the jury, inter alia, as follows:
In determining the facts, you are to consider only the
evidence which has been presented in court and the logical
inferences which can be derived from that evidence.
Statements made by counsel do not constitute evidence,
as I’ve told you previously. Also, the questions which
counsel put to witnesses are not themselves evidence. Let
me repeat that again. The questions which counsel put to
witnesses are not themselves evidence. It is the
witnesses’ answers which provide the evidence for you.
You should not speculate or guess that a fact may be true
merely because one of the lawyers asks a question which
assumes or suggests that a fact is true. That occurred
throughout this case on occasion. You are not to rely upon
supposition or guess on any matters which are not in
evidence. You should not regard as true any evidence
which you find to be incredible, even if it is uncontradicted.
N.T., 4/15/13, at 1055-56.
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Commonwealth v. Veon, 109 A.3d 754, 774 (Pa. Super. 2015). Instantly,
Appellant’s argument is devoid of any discussion of and citation to legal
authority. Therefore, this issue is waived. See id.
Thirdly, Appellant contends the trial court erred in allowing the
Commonwealth to present an improper closing argument when the
prosecutor played the audio of the backdraft video when the audio was not
presented through testimony at trial.12 As a prefatory matter, we consider
whether Appellant has waived this issue.
Appellant concedes that trial counsel did not object to the
Commonwealth’s closing argument. Appellant’s Brief at 61. In
Commonwealth v. Flor, 998 A.2d 606 (Pa. 2010), our Supreme Court
opined:
There is no indication from the record that [the a]ppellant
objected to the prosecutor’s closing argument during the
proceedings, and hence these issues are waived pursuant
to Pennsylvania Rule of Appellate Procedure 302(a). See
[Commonwealth v. McCrae, 832 A.2d 1026, 1037 (Pa.
2003)] (in the context of a challenge to the prosecutor’s
closing argument, stating that failure to raise the issue
before the trial court would render the issue waived
pursuant to Rule 302).[13]
12
It appears Appellant may have withdrawn this issue. In an abundance of
caution, we address it.
13
Pennsylvania Rule of Appellate Procedure 302 provides: “Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a).
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Id. at 638. Analogously, Appellant has waived the issue for failing to object
to the prosecutor’s closing argument. See id.
Next, Appellant contends the evidence was insufficient to sustain her
convictions for each of the crimes charged. As a prefatory matter, we
consider whether Appellant has waived the issue of the sufficiency of the
evidence. Pennsylvania Rule of Appellate Procedure 1925(b) provides, inter
alia, “Issues not included in the Statement and/or not raised in accordance
with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii).14
14
Rule 1925(b)(4) provides:
Requirements; waiver.
* * *
(ii) The Statement shall concisely identify each
ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues
for the judge. The judge shall not require the
citation to authorities; however, appellant may
choose to include pertinent authorities in the
Statement.
* * *
(iv) The Statement should not be redundant or
provide lengthy explanations as to any error. Where
non-redundant, non-frivolous issues are set forth in
an appropriately concise manner, the number of
errors raised will not alone be grounds for finding
waiver.
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In Commonwealth v. Garland, 63 A.3d 339 (Pa. Super. 2013), the
“[a]ppellant’s Pa.R.A.P. 1925(b) statement simply provided a generic
statement stating ‘[t]he evidence was legally insufficient to support the
convictions.’” Id. at 344. This Court found the appellant waived his
sufficiency of the evidence claim, reasoning:
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement
must state with specificity the element or elements upon
which the appellant alleges that the evidence was
insufficient. “Such specificity is of particular importance in
cases where, as here, the appellant was convicted of
multiple crimes each of which contains numerous elements
that the Commonwealth must prove beyond a reasonable
doubt.” Here, as is evident, [the a]ppellant . . . failed to
specify which elements he was challenging in his Rule
1925(b) statement . . . . Thus, we find [his] sufficiency
claim waived on this basis.
Id. (citations omitted).15
(v) Each error identified in the Statement will
be deemed to include every subsidiary issue
contained therein which was raised in the trial court;
this provision does not in any way limit the obligation
of a criminal appellant to delineate clearly the scope
of claimed constitutional errors on appeal.
Pa.R.A.P. 1925(b)(4)(ii), (iv)-(v).
15
Cf. Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (finding
issue not waived in “relatively straightforward drug case” where 1925(b)
statement merely stated evidence of drug trafficking and conspiracy was
insufficient, without specifying which element Commonwealth allegedly failed
to prove, and where trial court readily apprehended defendant’s claim and
addressed it in substantial detail). Instantly, Appellant was charged with
numerous offenses. The trial court did not address Appellant’s sufficiency
claims in substantial detail. On the contrary, the court opined: “Having
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In her Rule 1925(b) statement, Appellant articulated her sufficiency
claims as follows:
The evidence presented by the Commonwealth at (sic)
was insufficient to establish the elements of each of the
offenses charged when apart from her presence in the
location of the fire, and having left the area approximately
thirty-four (34) minutes before the fire was called in to
911, no evidence established that [Appellant] set this fire
or that it was even set by a human hand when Corporal
Hilbert did not conduct a thorough fire investigation to rule
out an electrical fire[.]
Appellant’s Concise Statemenet of Matters Complained of on Appeal
Pursuant to Rule 1925(b), at 2.16
In the instant case, Appellant was convicted of multiple crimes
containing numerous elements. Her 1925(b) statement failed to state any
element upon which she alleged the evidence was insufficient. Therefore,
the issue is waived. See Garland, 63 A.3d at 344.
In her fifth issue, Appellant contends the verdict was against the
weight of the evidence. She avers that the evidence “only established that
she was in the location of the fire approximately thirty-four minutes before
presided over the trial in this matter, this [c]ourt does not hesitate in
concluding that the evidence presented was more than sufficient to enable a
jury to find [Appellant] guilty on all counts.” Trial Ct. Op. at 7. The trial
court stated: “Additionally, we believe the sufficiency issue is waived due to
lack of specificity. [Appellant’s] 1925(b) Statement does not contain the
required specificity for this [c]ourt to adequately address which elements of
the offenses charged were unproven at trial.” Id.
16
We note that Appellant’s weight of the evidence claim reiterates a portion
of the sufficiency claim. See infra.
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the fire was called in to 911.” Appellant’s Brief at 45. Appellant avers that
the testimony of the Commonwealth’s expert, Corporal Hilbert, conflicted
with that of her expert, John Agosti, regarding the cause of the fire. Id. at
48. Appellant concludes that the verdict was against the weight of the
evidence as to all charges. Id. at 51.
In considering Appellant’s weight of the evidence claim, we are guided
by the following principles.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the
trial court’s discretion; it does not answer for itself whether
the verdict was against the weight of the evidence. It is
well settled that the [fact-finder] is free to believe all, part,
or none of the evidence and to determine the credibility of
the witnesses, and a new trial based on a weight of the
evidence claim is only warranted where the [factfinder’s]
verdict is so contrary to the evidence that it shocks one’s
sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial
judge’s discretion was properly exercised, and relief will
only be granted where the facts and inferences of record
disclose a palpable abuse of discretion.
Moreover,
[a] new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather,
the role of the trial court is to determine that
notwithstanding all the evidence, certain facts are so
clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A
motion for a new trial on the grounds that the verdict is
contrary to the weight of the evidence concedes that there
is sufficient evidence to sustain the verdict; thus the trial
court is under no obligation to view the evidence in the
light most favorable to the verdict winner.
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Lastly,
[b]ecause the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citations
omitted).
Instantly, the trial court opined:
[W]e do not hesitate in finding that there was more than
enough evidence presented to enable the jury to find
[Appellant] guilty of the crimes charged. We do not
believe that the verdict reached in this matter would shock
the conscience of a reasonable person reviewing the
evidence as it was presented to the jury at the time of
trial.
Having presided over the trial in this matter, the jury
clearly believed the Commonwealth’s witnesses and
evidence over that which was presented by the Defense.
Based upon the jury’s verdict, it is obvious to this [c]ourt
that the jury also resolved all issues of credibility in favor
of the Commonwealth’s witnesses and against the Defense
witnesses, including that of the expert witnesses. The jury
was free to believe all, part, or none of the testimony of
the witnesses. In this case, however, it is evidence that
the jury found credible the Commonwealth’s experts,
Corporal Shawn Hilbert and Paul Savage, and did not find
entirely credible the Defense expert, John Agosti. We also
note the fact that [Appellant] testified at trial, even though
it was her right not to do so. [Appellant] denied the
allegations against her.
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Once again, taking into consideration the length of the
trial and the vast amount of evidence presented,
[Appellant’s] allegation that the verdict was against the
weight of the evidence simply lacks merit.
Trial Ct. Op. at 8-9.
The trial court found no merit to Appellant’s claim that the verdict was
against the weight of the evidence. Id. at 9. Appellant asks this Court to
reweigh the evidence and find the evidence that inculpated her was not
credible. This we cannot do. See Landis, 89 A.3d at 699. We discern no
abuse of discretion by the trial court. See id.
Sixth, Appellant contends the trial court erred in denying her motion
for judgment of acquittal as to the charge of arson-reckless burning.
Appellant contends the evidence was insufficient.17 Appellant’s Brief at 52.
She avers the Commonwealth failed to prove that Mr. Temporski’s personal
items were affected by the fire as required to prove “she started a fire on
the property of another and thereby recklessly ‘place[d] any personal
property of another having a value that exceeds $5,000 . . . in danger of
damage or destruction.’” Id. at 52-53, quoting 18 Pa.C.S. § 3301(d)(2).18
17
We acknowledge that we find Appellant has waived her sufficiency of the
evidence claims. Because this claim is raised in terms of the denial of her
motion for judgment of acquittal, we have addressed it.
18
The statute defines the offense as follows:
(d) Reckless burning or exploding.─A person commits
a felony of the third degree if he intentionally starts a fire
or causes an explosion, or if he aids, counsels, pays or
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On appeal, Appellant fails to cite to the place in the record where this
claim was preserved before the trial court. See Pa.R.A.P. 2117(c) (requiring
statement of case to specify state of proceedings at which issue sought to be
reviewed on appeal was raised), 2119(e) (requiring same of argument
section of appellate brief); Commonwealth v. Fransen, 42 A.3d 1100,
1106 n.11 (Pa. Super. 2012) (en banc), appeal denied, 76 A.3d 538 (Pa.
2013) (“Failing to direct this Court to specific portions of the record in
support of an argument violates Pa.R.A.P. 2119 (c) [and for] that reason
alone, we could conclude this issue is waived.”) However, we decline to find
waiver on this basis.
Appellant’s motion for judgment of acquittal was made at the close of
the case pursuant to Pa.R.Crim.P. 606 which provides in pertinent part:
(A) A defendant may challenge the sufficiency of the
evidence to sustain a conviction of one or more of the
offenses charged in one or more of the following ways:
* * *
agrees to pay another to cause a fire or explosion, whether
on his own property or on that of another, and thereby
recklessly:
* * *
(2) places any personal property of another having a
value that exceeds $5,000 or if the property is an
automobile, airplane, motorcycle, motorboat or other
motor-propelled vehicle in danger of damage or
destruction.
18 Pa.C.S. § 3301(d)(2).
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(2) a motion for judgment of acquittal at the close of all
the evidence[.]
Pa.R.Crim.P. 606(A)(2).
A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on a
particular charge, and is granted only in cases in which the
Commonwealth has failed to carry its burden regarding
that charge.
The standard of review for claims of insufficient evidence is
well-settled. With respect to such claims, we consider the
evidence in the light most favorable to the Commonwealth
as verdict winner. In that light, we decide if the evidence
and all reasonable inferences from that evidence are
sufficient to establish the elements of the offense beyond a
reasonable doubt. We keep in mind that it was for the
trier of fact to determine the weight of the evidence and
the credibility of witnesses. The jury was free to believe
all, part or none of the evidence. This Court may not
weigh the evidence or substitute its judgment or that of
the factfinder.
Commonwealth v. Devries, ___ A.3d ___ , ___, 2015 WL 1268160 at *3
(Pa. Super. 2015) (citations omitted).
In the case sub judice, the trial court opined:
[T]he Commonwealth and [Appellant] entered into a
Stipulation governing the claims of the victims and the
value of losses suffered by each. This Stipulation was read
into the record by the Assistant District Attorney in the
presence of the jury. Defense counsel also acknowledged
that the Stipulation as read by the Assistant District
Attorney accurately represented the agreement of the
parties. As such, we will not now hear [Appellant]
complain about something[s]he previously agreed to. It
was certainly this [c]ourt’s understanding that a global
resolution was reached between the Commonwealth and
Defense relative to the losses sustained by all
occupants of the building and the building owner.
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Trial Ct. Op. at 9-10 (emphasis added).19 We agree no relief is due.
At trial, the parties entered into the following Stipulation:
Number 1, due to the fire at the Lantern Lane Building
located at 314-316 Main Street, Conyngham,
Pennsylvania, tenant Nicole Buak filed a claim with her
insurance company, Erie Insurance . . . . The total amount
of the claim paid by Erie Insurance was $18,156.36.
Two, due to the fire at the Lantern Lane Building . . .
building owner, Kenneth Temborski, doing business as
American Industrial Resources, filed a claim with his
Insurance Company, Erie Insurance . . . . The total
amount of the claim paid by Erie Insurance was $984,243.
The total replacement cost per Erie Insurance was
$1,323,345.00.
Three, due to the fire at the Lantern Lane Building . . .
tenants, Falvello Law Firm, filed a claim with their
insurance company, Hartford Insurance . . . . The total
amount of the claim paid by Hartford Insurance was
$10,000.
. . . No. 4, due to the fire at Lantern Lane Building . . .
tenant, Richard Grovich, DMD, filed a claim with his
insurance company, Hartford Insurance . . . . The total
amount of the claim paid by Hartford Insurance was
$100,000.
Number 5, due to the fire at the Lantern Lane Building .
. . tenant, Navigate Financial Advisors, filed a claim with
their insurance company, State Farm Insurance . . . . The
total amount of [sic] claim paid by State Farm Insurance
was $10,000.
19
We note that the trial court found the issue waived because Appellant did
not move for a judgment of acquittal after the Commonwealth rested its
case. Trial Ct. Op. at 10. However, counsel moved for a judgment of
acquittal pursuant to Pa.R.Crim.P. 606(A)(2).
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Number 6, due to the fire at the Lantern Lane building .
. . tenant, M & L Trucking, filed a claim with their
insurance company, Acadia Insurance . . . . The total
amount of (sic) claim paid by Acadia Insurance was
$2,100.
Number 7, due to the fire at the Lantern Lane Building .
. . tenant, Barbara Reese, filed a claim with her insurance
company, State Farm Insurance . . . . The total amount of
the claim paid by State Farm Insurance was $25,000.
Number 8, due to the fire at the Lantern Lane Building .
. . tenant, Nellie Stratts, filed a claim with her insurance
company, State Farm Insurance . . . . The total amount of
[sic] claim paid by State Farm Insurance was $18,000.
N.T. at 596-98.
Following the reading of the stipulation to the jury, the court asked
defense counsel if it accurately represented the stipulation between the
parties and counsel agreed. Id. at 598. The court then explained to the
jury that the parties agreed that the facts as recited in the stipulation were
true and they “should regard the stipulated or agreed fact as proven.” Id.
at 598-99. The stipulated facts indicated that the fire placed personal
property in danger of damage or destruction pursuant to 18 Pa.C.S. §
3301(d)(2). Appellant’s claim that the trial court erred in denying her
motion for judgment of acquittal as to arson-reckless burning is without
merit. See Devries, ___ A.3d at ___ , 2015 WL 1268160 at *3.
Next, Appellant contends that the fourteen to twenty-eight years
sentence was manifestly excessive. Appellant’s Brief at 54. Appellant claims
the court gave consideration to impermissible factors when imposing her
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excessive and unreasonable sentence, viz., knowledge of risk of harm to
firemen, risk of harm to victims, age of victims, financial damage to the
building, and emotional damage to victims. Id. at 57.
This Court has stated,
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to appellate review as of
right. 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) (some
citations and punctuation omitted).
Instantly, Appellant timely appealed, preserved her issue in her post
sentence motion,20 and included a Pa.R.A.P. 2119(f) statement in her brief.
See Appellant’s Brief at 23-24. Accordingly, we ascertain whether Appellant
has presented a substantial question. Id. “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
20
Appellant’s Post-Sentence Mot., 7/3/13, at 9.
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fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (punctuation omitted), appeal denied,
91 A.3d 161 (Pa. 2014).21
In Commonwealth v. McNabb, 819 A.2d 54 (Pa. Super. 2003), this
Court held that an appellant “raises a substantial question by alleging his
sentence is excessive due to the trial court’s reliance on impermissible
factors.” Id. at 56-57. We find Appellant has raised a substantial question.
See id.
Appellant argues the court failed to consider the sentencing factors
found in 42 Pa.C.S. § 9721. Appellant’s Brief at 56. She also contends
“[t]he court’s reasons for its imposition of aggravated range sentences was
the knowledge of the risk of harm to firemen, the knowledge of the risk of
harm to the victims, the age of the victims, the financial damage to the
building, and emotional damage to the victims.”22 Id. at 57.
21
“[W]e disapprove of Appellant’s failure to indicate where his sentences fell
in the sentencing guidelines and what provision of the sentencing code was
violated.” Dodge, 77 A.3d at 1271. However, because the Commonwealth
has not objected to the adequacy of Appellant’s argument, we decline to find
waiver on this defect. See id. At sentencing, the court noted that it was
sentencing Appellant within the aggravated range of the guidelines. See
N.T., 6/24/13, at 29-31.
22
Appellant also claims the court failed to consider her serious health issues.
Appellant’s Brief at 60. The “court failed to give weight to the fact that [she]
does not have a prior record” and “to give weight to [her] father[s’]
testimony as to how she was raised and asking for compassion and
understanding.” Id. at 60-61. “[T]his Court has held on numerous
occasions that a claim of inadequate consideration of mitigating factors does
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Our standard of review is as follows:
[s]entencing 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. More specifically, 42
Pa.C.S.A. § 9721(b) offers the following guidance to the
trial court’s sentencing determination:
[T]he 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.
42 Pa.C.S.A. § 9721(b).
Furthermore,
section 9781(c) specifically defines three instances in
which the appellate courts should vacate a sentence
and remand: (1) the sentencing court applied the
guidelines erroneously; (2) the sentence falls within
the guidelines, but is “clearly unreasonable” based
on the circumstances of the case; and (3) the
sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Under 42
Pa.C.S. § 9781(d), the appellate courts must review
the record and consider the nature and
circumstances of the offense, the sentencing court’s
observations of the defendant, the findings that
formed the basis of the sentence, and the sentencing
not raise a substantial question for our review.” Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted). We note,
however, that the sentencing court stated: ”I’ve also considered the
testimony of [Appellant] and her father and considered her age and her
relatively minor prior record. She does have a prior record score of zero and
has some health issues.” N.T., 6/24/13, at 29.
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guidelines. The weighing of factors under 42 Pa.C.S.
§ 9721(b) is exclusively for the sentencing court,
and an appellate court could not substitute its own
weighing of those factors. The primary
consideration, therefore, is whether the court
imposed an individualized sentence, and whether the
sentence was nonetheless unreasonable for
sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)
(alterations and some internal citations omitted).
Our Supreme Court has stated:
Where pre-sentence 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. A pre-sentence report constitutes the
record and speaks for itself. In order to dispel any
lingering doubt as to our intention of engaging in an effort
of legal purification, we state clearly that sentencers are
under no compulsion to employ checklists or any extended
or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not
be disturbed. This is particularly true, we repeat, in
those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).
Instantly, at sentencing, the court opined: “I have had an opportunity
obviously to preside over the trial held in this matter, have reviewed the
presentence investigation report, the various victim impact statements
that were presented to the [c]ourt, and all of the evidence and argument
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presented this morning.” N.T., 6/24/13, at 28 (emphasis added).
Accordingly, after examining the record as a whole, we find that the trial
court’s sentence was not manifestly excessive. We discern no abuse of
discretion. See Devers, 546 A.2d at 18.
Lastly, Appellant contends counsel was ineffective for failing to object
during the Commonwealth’s closing argument to the introduction of the
audio portion of the backdraft video and improper argument regarding the
video. Appellant’s Brief at 63. It is well-settled that challenges to the
effectiveness of counsel are generally deferred until collateral review. See
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). There are two
exceptions:
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial
counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration
best serves the interests of justice; and we hold that trial
courts retain their discretion to entertain such claims.
Second, with respect to other cases and claims,
including cases such as [Commonwealth v. Bomar, 826
A.2d 831 (Pa. 2003)] and the matter sub judice, where the
defendant seeks to litigate multiple or prolix claims of
counsel ineffectiveness, including non-record-based claims,
on post-verdict motions and direct appeal, we repose
discretion in the trial courts to entertain such claims, but
only if (1) there is good cause shown, and (2) the unitary
review so indulged is preceded by the defendant’s knowing
and express waiver of his entitlement to seek PCRA review
from his conviction and sentence, including an express
recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the
PCRA.
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Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013).
Instantly, Appellant did not raise his ineffectiveness claim for
consideration by the trial court and, moreover, did not knowingly waive his
right to seek PCRA review. See id. Absent consideration, “the claims
regarding trial counsel’s ineffectiveness will be dismissed without prejudice.”
See Grant, 813 A.2d at 739. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2015
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