J-S32013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES GEARHART,
Appellant No. 1482 WDA 2014
Appeal from the Judgment of Sentence Entered August 14, 2014
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000891-2008
BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 19, 2015
Appellant, Charles Gearhart, appeals from the judgment of sentence
entered for his convictions of multiple drug related offenses after this Court
vacated his previous judgment of sentence and remanded for resentencing.
We affirm.
The trial court summarized the procedural history of this case as
follows:
[Appellant] was convicted of 19 charges relating to drug
distribution activities occurring between 2005 and 2007. See
Sentencing Order, CP-17-CR-891-2008 (May 24, 2012). On
January 8th, 2009, as a result of a grand jury investigation
commencing in 2006, drug related charges were filed against
Clearfield County residents Michael Styers and [Appellant] as
well as Maharaji Hemingway, from Philadelphia, Pennsylvania.
The Grand Jury determined that Styers was the head of a
cocaine distribution network operating primarily out of his
garage/residence in Clearfield, Clearfield County with [Appellant]
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being one of Styers’ principal cocaine dealers.1 Hemingway was
named as Styers’ main source of cocaine out of Philadelphia
between 2005 and 2007. Hemingway was alleged to have sold
Styers and others cocaine in Philadelphia and in Clearfield
County multiple times each month during the duration of their
association.
1
The 26th Statewide Investigating Grand Jury based
in Allegheny County, Pennsylvania issued
Presentment Number 32 on September 25, 2008.
As a result, charges were filed against Styers, Hemingway,
and [Appellant] in the above captioned matter. Specifically,
[Appellant] was charged with various counts of possession with
intent to deliver and delivery of controlled substance, criminal
conspiracy, criminal use of communication facility, dealing in
proceeds of unlawful activity, and corrupt organizations. After
lengthy pre-trial proceedings a consolidated trial for all three
defendants was held before the Clearfield County Court of
Common Pleas on January 23, 2012 through February 1, 2012.
During the course of this eight day trial, the
Commonwealth presented the testimony of twenty-four
witnesses who were connected with or participated in the
cocaine distribution ring alleged in this case. Numerous
witnesses provided testimony directly regarding [Appellant]
and/or his involvement in selling cocaine in Clearfield County.2
Although many of the witnesses had prior criminal records and
were co-conspirators in the drug organization, these matters
were fully explored on direct and cross-examination, along with
any plea agreements with the Attorney General.
2
For example, Arianne Brocious testified that she
introduced Styers to Hemingway, and made multiple
trips with Styers and/or with [Appellant] to
Philadelphia to purchase cocaine from Hemingway.
Trial Tr. Day 3 of 8, Test. of Arianne Brocious, 9,
Jan. 25, 2012. In her testimony, Ms. Brocious
estimated that four ounces of cocaine were
purchased per trip, with the trips occurring regularly.
Id. at 11, 13. She testified that she made around or
more than fifteen trips with Styers and/or
[Appellant], and that they would also make trips
without her. Id. at 13-14.
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Following deliberations, the jury found [Appellant] guilty
on all charges in the information. Sentencing occurred before
this Court on May 24, 2012, where all defendants received
lengthy periods of state incarceration.
For his role in the crimes, [Appellant] was given an uneven
sentence of 11 to 18 years of incarceration. See Sentencing
Order, CP-17-CR-891-2008 (May 24, 2012). Notably,
[Appellant] was sentenced to 4 to 8 years of incarceration for
count 13, Delivery of a Controlled Substance (100 grams to
1000 50 grams/cocaine) [sic]; and 7 to 10 years of incarceration
for count 14, Delivery of a Controlled Substance (100 grams to
1,000 grams/cocaine). These sentences were imposed
consecutively, for a combined sentence of 11 to 18 years of
incarceration. The remaining charges (counts 1-12; and counts
15-19) for which [Appellant] was convicted were imposed
concurrently to the sentences for counts 13 and 14. See
Sentencing Order, CP-17-CR-891-2008 (May 24, 2012).
Trial Court Opinion, 11/6/14, at 1-3.
On appeal, this Court affirmed Appellant’s convictions. However, upon
finding that the trial court imposed several mandatory minimum sentences
pursuant to 18 Pa.C.S. § 7508, this Court sua sponte vacated Appellant’s
sentence and remanded for resentencing. Commonwealth v. Gearhart,
992 WDA 2012, 97 A.3d 814 (Pa. Super. filed February 25, 2014)
(unpublished memorandum) at 7-11. Upon remand, on August 14, 2014,
the trial court resentenced Appellant to serve an aggregate term of
incarceration of eleven to twenty-two years of incarceration. This timely
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appeal followed.1 Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant presents the following issue for our review:
Whether the Trial Court engaged in vindictive sentencing to give
the Appellant a longer sentence following an Appeal to Superior
Court.
Appellant’s Brief at v.
Appellant argues that, although it did not impose mandatory minimum
sentences upon resentencing, the trial court imposed a more severe
sentence upon Appellant than originally fashioned. Appellant contends that
such sentencing is presumed to be vindictive and that there must be stated
reasons by the trial court in order to overcome the presumption of
vindictiveness. Appellant’s Brief at 1.
A claim that a sentence imposed by the trial court was “vindictive”
amounts to a challenge to the discretionary aspect of the sentence.
Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006). Thus,
our standard of review is one of abuse of discretion. Sentencing is a matter
vested in the sound discretion of the sentencing judge, and a sentence will
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1
We note that, at the outset of its opinion drafted pursuant to Pa.R.A.P.
1925(a), the trial court stated that Appellant “is appealing the denial of his
Post-Sentence Motion. . . .” Trial Court Opinion, 11/6/14, at 1. However,
our thorough review of the certified record reflects that Appellant did not file
post-sentence motions after his resentencing. Likewise, the certified record
does not contain an order that would purport to deny any such post-
sentence motion.
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not be disturbed on appeal absent a manifest abuse of discretion.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Moreover, where an appellant challenges the discretionary aspects of a
sentence, there is no automatic right to appeal, and an appellant’s appeal
should be considered to be a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we
observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we
reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d
790 (Pa. Super. 1995), wherein this Court observed that, although
Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions
as optional, the rule expressly provides that only issues raised in the trial
court will be deemed preserved for appellate review. Applying this principle,
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the Reeves Court held that an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. See also Commonwealth v. Parker, 847 A.2d
745 (Pa. Super. 2004) (holding challenge to discretionary aspect of sentence
was waived because appellant did not object at sentencing hearing or file
post-sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa.
Super. 2000) (same). Also, a failure to include the Pa.R.A.P. 2119(f)
statement does not automatically waive an appellant’s argument; however,
we are precluded from reaching the merits of the claim when the
Commonwealth lodges an objection to the omission of the statement.
Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006) (quoting
Commonwealth v. Love, 896 A.2d 1276 (Pa. Super. 2006)).
Herein, the first requirement of the four-part test is met because
Appellant timely brought this appeal following Appellant’s resentencing.
However, our review of the record reflects that Appellant did not meet the
second requirement because he did not raise his current challenge to the
discretionary aspects of his sentence in a post-sentence motion or at the
time of sentencing. Likewise, the third requirement is not met. Specifically,
Appellant failed to include in his appellate brief the necessary separate
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). The Commonwealth has objected to this
omission by Appellant. See Commonwealth’s Brief at 9-11. Therefore,
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Appellant’s issue is waived, and we are precluded from addressing the merits
of his claim on appeal. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2015
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