Com. v. Weekley, M.

J-S36025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MONROE WEEKLEY, III

Appellant No. 1732 WDA 2014

Appeal from the Judgment of Sentence September 19, 2014
in the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0002162-2011

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.: FILED JULY 10, 2015

Appellant Monroe Weekley, III, appeals from the judgment of sentence

entered in the Beaver County Court of Common Pleas following his jury trial

conviction for third degree murder,1 receiving stolen property,2 and firearms

not to be carried without a license.3 We affirm.

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2501(a).
2
18 Pa.C.S. § 3925(a).
3
18 Pa.C.S. § 6106(a).
J-S36025-15

In its Pa.R.A.P. 1925(a) opinion, the trial court fully and correctly sets

forth the relevant facts and procedural history of this case. See 1925(a)

Opinion, pp. 1-12.4 Therefore, we have no reason to restate them.

Appellant raises the following issues for our review:

I. The [t]rial [c]ourt erred in determining that the evidence was
sufficient to support a conviction for [r]eceiving [s]tolen
[p]roperty, where the Commonwealth failed to offer any
evidence that [Appellant] knew the firearm was stolen.

II. The [t]rial [c]ourt abused its discretion in imposing
consecutive sentences, using an incorrect offense gravity score
of 9 (loaded weapon) rather than 7, which resulted in an unduly
harsh sentence, without considering [Appellant’s] specific
circumstances and rehabilitative needs when compared to the
need to protect the public.

Appellant’s Brief, p. 6.

When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
____________________________________________

4
The introductory paragraph of the trial court’s 1925(a) opinion incorrectly
indicates that the instant matter is an appeal of the disposition of Appellant’s
PCRA petition. See 1925(a) Opinion, p. 1. In actuality, the instant appeal is
of Appellant’s judgment of sentence following the trial court’s grant of
Appellant’s PCRA petition requesting reinstatement of his direct appeal rights
nunc pro tunc after this Court dismissed his first appeal because Appellant’s
direct appeal counsel failed to file a brief. See Commonwealth v.
Weekley, 424 WDA 2013, Order filed January 22, 2014. The body of the
trial court’s 1925(a) opinion correctly states the procedural posture of the
matter (see 1925(a) Opinion, pp. 10-12) and the trial court’s misstatement
has no bearing on its thorough analysis of the issues raised.

-2-
J-S36025-15

evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

Regarding Appellant’s discretionary aspects of sentencing claim, we

observe:

[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion. . . . [A]n abuse of discretion is more than a mere
error of judgment; thus, a sentencing court will not 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. In more expansive terms,
our Court recently offered: An abuse of discretion may not be
found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.

-3-
J-S36025-15

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super.2010)

(internal citations omitted).

Further, we note that “[c]hallenges to the discretionary aspects of

sentencing do not entitle a petitioner to review as of right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before

this Court can address such a discretionary challenge, an appellant must

comply with the following requirements:

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.

Id. at 1064.

“A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.” Id. at 10.

Here, Appellant filed a timely notice of appeal, and preserved his

issues in a post-sentence motion. Further, Appellant’s brief includes a

-4-
J-S36025-15

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 10. A court’s

exercise of discretion in imposing a sentence concurrently or consecutively

does not ordinarily raise a substantial question. Commonwealth v.

Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010), appeal denied, 14 A.3d

825 (Pa.2011). Rather, the imposition of consecutive rather than concurrent

sentences will present a substantial question in only “the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.”

Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super.2012), appeal

denied, 75 A.3d 1281 (Pa.2013). This Court has stated that

a defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive
sentence; however, a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a substantial
question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(emphasis in original). However, an allegation that a trial court employed

an improper calculation of an Offense Gravity Score raises a substantial

question for appellate review. See, e.g., Commonwealth v. Archer, 722

A.2d 203, 210-211 (Pa.Super.1998) (claim that sentencing court used

incorrect Offense Gravity Score raises a substantial question regarding

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J-S36025-15

discretionary aspect); see also Commonwealth v. Jackson, 585 A.2d

533, 534 (Pa.Super.1991) (“Where [an] appellant avers that the sentencing

court failed to properly apply the sentencing guidelines a substantial

question as to the appropriateness of the sentence has been raised.”).

Therefore, Appellant has raised a substantial question for our review, and we

can properly address Appellant’s discretionary aspects of sentencing on

appeal.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Kim Tesla,

we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions

presented. See Trial Court Opinion, dated November 20, 2014, pp. 12-21

(finding: (1) evidence that Appellant was in possession of firearm within

three months of its theft and sold firearm after murder, without proof of

ownership and with the help of a known illegal firearms dealer, was sufficient

to support conviction for receiving stolen property; (2) court properly

sentenced Appellant after considering 42 Pa.C.S. § 9721(b) sentencing

factors, Appellant’s pre-sentence report, sentencing guidelines, Appellant’s

prior record, evidence presented at sentencing, Appellant’s allocution, and

Appellant’s rehabilitative needs; and (3) court properly employed offense

-6-
J-S36025-15

gravity score of 95 because jury could infer that firearm Appellant used to

shoot victim was loaded while in Appellant’s possession). Accordingly, we

affirm on the basis of the trial court’s opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015

____________________________________________

5
In sentencing Appellant on the firearms not to be carried without a license
conviction, the trial court would have properly used an offense gravity score
of 9 if the weapon were loaded, whereas an offense gravity score of 7 would
have been appropriate were the weapon unloaded.

-7-
 Circulated 06/30/2015 03:25 PM

1:",I THE COL"RT OF COMMON PLEAS OF BEAVER COL'"KTY
PE~".\:S YLVA NlA
CRJ\ifIJ\AL DlVJSION - LAW
)
COMYIOI\\VEAL TH OF PE:t\~SYL VAN IA,

vs.
J'\o. 2162 of 20l l
MONROE WEEKLEY. ur,

Defendant

Tesla, J, November 90 . 2014
Rt;LE 1925(a). OPINION
Before this Court for disposition is the petition for post-conviction collateral relief under

the Post C onviction Relief Act ( hereinafter. ··PCR.A .. l filed on behalf of Defendant Monroe

Weekly. Ill. This is the second time this matter has been appealed, and this the second 1925(a)

Opinion issued by this Court. For the reasons staled below, Defendant's Petition is denied.

) FACTS AND PROCEDliRAL HISTORY

A. Facts and Investigation

This matter arises out of the death of Rashawn T. Cameron. At approximately 11 :35 a.m,

on Sunday, '.!\o·vember 21, 2010. the Beaver County 911 Emergency Control Center received a

telephone call from an unidentified female located at the residence of Willie Martin at 308

Cooper Street. Aliquippa, Pennsylvania. The female reported that, inside the residence. an

unknown male was lying on the living room couch unresponsive and bleeding from the face, As

a result of the caller· s in formation, the Emergency Control Center dispatched Aliquippa Police to

the reported address. L pon arrival at the residence at approximately l l :40 a.m .. the responding

officers observed a black male identified as Rashawn T. Cameron (hereinafter, "Cameron") lying

in a pool of blood. His waist was positioned at the edge of a scat cushion with his feet resting on

APP.B
 Circulated 06/30/2015 03:25 PM

the floor. A preliminary examination of Cameron's body by the responding officers and Deputy

') Coroner Wayne Tatalovich revealed that Cameron sustained a gunshot wound to the back of his

head behind his left ear with a large exit wound on his forehead above the right t!}'~- He was

pronounced dead at the scene. During the search of the crime scene, law enforcement located

fragments of a lead projectile. After performing an autopsy. Dr. James Smith determined that

Cameron died as a result of the gunshot wound and that Cameron was the victim of a homicide.

On February 10. 10 IL Assistant Chief County Detective Andrew Gall and County

Detective Robert Heberle interviewed Bradley J. Karas (hereinafter. "Karas") in connection with

their investigation of this matter. Karas told the officers that, during the morning of November

21. 2010. he was sleeping at the residence of James C. Stewart II] (hereinafter ... Stewart": at 181

Baker Street. Aliquippa. Pennsylvania, According to Karas. Defendant arrived at Stewart's

residence between 6:30 a.m. and 7:30 a.m, wearing dark jeans. black boots. a black hoodie, and

carrying a black book bag. Karas stated that. after seeing Defendant. he fell asleep again and

awoke at· approximately 10:30 a.m, Shortly thereafter, Karas walked into the kitchen and

observed Defendant and Stewart talking, Karas slated that he also observed Defendant remove

what appeared to be a .44 caliber Smith and Wesson revolver handgun from his black book bag.

Defendant {hen asked Karas to lake the handgun downstairs to clean it and warned that the

handgun should not be touched until after it was deaned. Karas stated that, after he complied

with Defendants request. Defendant and Stewart left Stewart's residence and attempted to sell

the handgun to James E. Connor HI (hereinafter ... Connor .. ).

Karas toJd Detectives Gall and Heberle that. upon returning lo Stewart's residence.

Defendant described the murder of Cameron. Defendant told Karas that he and an unidentified

black male purchased a S50.00 piece of crack cocaine from an unidentified individual at a crack
 Circulated 06/30/2015 03:25 PM

house on Plan 11 in Aliquippa, Defendant, the unidentified black male. and someone Defendant

referred to as the "Vic" went outside or the crack house for about a minute and then the "Vic ..
)
and Defendant went back inside the crack house. Defendant stated that. when the "Vic" sat on

the couch and bent over to retrieve something from under the coffee table, Defendant shot the

"Vic .. in the head. Defendant stated that he attempted to rob the "Vic" but found nothing in his

pockets. Defendant then walked to Valley Terrace, left his clothes near a dumpster. and

proceeded to Stewart's residence.

After he related these events. Defendant remained at Stewart' s residence umll

approximately 4:00 p.m .• when an unidentified white female driving a white Chevrolet Cavalier

picked Defendant up and drove him from the residence. Kara'> told the detectives that, as

Defendant left. he was carrying the same black book bag that had previously held the revolver.

Also on February l 0. .2011. Detective Heberle and Sergeant Steve Roberts of the

Aliquippa Police Department reported to Connor's residence at 171 Baker Street Aliquippa.
)
Pennsylvania to question Connor and to attempt to retrieve the .44 caliber revolver that Stewart

allegedly .sold to Connor on behalf of Defendant. Connor admitted that he purchased a .44

Maznum
~ Ruger
~ Redhawk revolver (hereinafter, "Redhawk revolver") from Stewart. and. based

on information provided by Connor, the investigators were able to recover the Redhawk

revolver, Through an inquiry conducted at the Beaver County Emergency Control Center, law

enforcement officials discovered the identity of the owner of the Redhawk revolver and that it

was reported missing by the owner in May of 2010.

On February l 1. 2011. Connor reported to the police station and provided a statement

regarding how he acquired the Redhawk revolver. Connor indica« . --d that. at some point towards

the end of November 10 l 0. Stewart came to his residence and sold him the Redhawk revolver

)
 Circulated 06/30/2015 03:25 PM

for 5400.00. Stewart told Connor that he would be unable to transfer ownership of the firearm

until he located the previous owner.

Later that day, Sergeant Roberts. Detective Heberle, and Captain Anthony Q. McClure

interviewed Stewart at the Aliquippa Police Department. Stewart told the officers that, on the

morning of ~OYemher 11, :!OlO. he awoke to find Defendant in his residence. According to

Stewart, Defendant stated that he had . firearms not to be carried

without a license ( 18 Pa.CS.A. § 6 l 06{ a)( I),. and crimes committed with firearms {18 Pa.C. S.A_

§ 6103). On the same day. a warrant was issued for Defendant's arrest. and Defendant was taken
)
into custody. While incarcerated in the Beaver County Jail. Defendant s phone conversations

were recorded. During these conversations, a message was broadcasted multiple times warning

that the conversation was being recorded. On September 2. 201 J. a subpoena duces tecum was

issued for recorded telephone conversations involving Defendant from the date of his

incarceration to September 1, 2011. Warden William Schouppe of the Beaver County Jail

complied with the subpoena (hereinafter. "subpoena for jail recordings").

On November 15. :!O I L a subpoena duces tecum was issued to Sprint .' Nextel for the

subscriber information. call detail records including text messages. and cell site tower location

data for cell phone number (724} 513-1579 for the dates and times of November 19. 2010 at

12:00 p.m. to July 18.2011 at 1.:toO p.m. Sprint: Nextel did not provide any of the requested
 Circulated 06/30/2015 03:25 PM

information except for a list of phone numbers and a letter stating thal the requested data could

) not be supplied because the proper paperwork was not issued. As a result. on November 13.

20 I L Detective Chamberlain submitted an application for search warrant requesting the same

information for the period ofNovember 19. 2010 at 12:00 p.m. to November 18. 2011 at 12:00

p.m. In the affidavit, Detective Chamberlain indicated that Stewart testified during the November

9. 2011 preliminary hearing regarding communications he had with Defendant. Stewart testified.

that he was receiving text messages from Defendant. who was using a cell phone with the

number (724) 513-1579. Detective Chamberlain also indicated that he verified that this cell

phone was active before. during. and after the investigation into Cameron· s death. At

approximately I: 12 p.m. on Xovember 13. 10 l L Judge Dohanich signed and authorized the

search warrant (hereinafter ... second search warrant for Defendants cell phone records"), Sprint.'

Nextel provided the requested information on December 5. 20 l 1.

On that same- date, the Commonwealth fiJed an Information charging Def endant with

criminal homicide. robbery, recci ving stolen property. and firearms not to be carried without a

license. On \1ay 21. 2012. Defendant filed an Omnibus Pre-Trial Application, which included

several different motions. A hearing on Defendaru's Application was held on June 1. :?OJ 2 and

June 4. 20l2. During the hearing. the Court denied Defendant's request for a bill of particulars,

and in an Order tiled on June 1 L .'.:!01.2. the Court addressed Defendant s discovery issues, On

July 5, 20J 2, the Court issued an Order denying Defendant's Motion to Suppress Evidence.

Trial in this matter commenced on August 6, 2011. During the testimony of Stewart. the

Commonwealth displayed to the jury a series nf photographs of text messages exchanged

between Defendant and Stewart on March 1. 1011. Defendant initially objected to the

presentation and admission of the photographs. and the Court overruled Defendam's objection.

9
 Circulated 06/30/2015 03:25 PM

On August 10, 2012. Defendant filed a Trial Motion for Suppression of Evidence and Mistrial,

\ seeking to suppress the text message exchange and all evidence derived from the seizure of it.
!

According to Defendant. Stewart testified that he sent text messages to Defendant at Captain

~vkClur~·s direction in violation of the Pennsylvania Wiretapping and Electronic Surveillance

Control Act O to the Pennsylvania State

Police Laboratory for lab fees, $1-71 LOO to Cameron's father for funeral expenses. and
)
56.500.00 to the Victims Compensation Fund for funeral expenses. On October 15, 2012,

Defendant filed an Omnibus Post-Sentence Application containing a Motion in Arrest of

Judgment. a Motion for a New Trial. and a Motion for Modification of Sentence. Following the

transcription of the notes of testimony. Defendant filed a Supplemental Omnibus Post-Sentence

Application on January 2. 2012. Oral argument on Defendant's post-sentence motions was held

on February 4. 2013. On February R. 2013. the Court issued an Order denying Defendant· s post-

sentence motions.

C. Defendant's First Appeal

On March 5. 2013. Defendant filed an appeal of the February 8. 2013 Order. That

appellate case was docketed as Case '\'o. 424 WDA 2013. Defendant was directed to fi1e a Rule

10
 Circulated 06/30/2015 03:25 PM

1925(b) statement which he submitted on March 25. 2013. Defendant raised numerous

) allegations of error in his 1925(b) statement. An extensive J 925(a) Opinion was issued on April

29. 2013 addressing the twenty-one issues.

Defendant's counsel. Dennis Di:'vfartini, was granted three extensions by the Superior

Court to file an Appellate Brief. The first extension was granted on J unc 20. 20 l 3. the second on

September 19, 2013. and the third on Novem bcr 2~. 2013. Defendant's counsel then failed either

to file an Appellate Brief or to request another extension. The Superior Court dismissed

Defendant's appeal on January 2:2. 201-4- for failure to file a Brief.

D. Defendanr's Cu rrcnt Appeal

Defendant's case having been dismissed due to his counsel's failure to file an Appellate

Brief or request an additional extension. Defendant himself ti led pro se a Post Conviction Relief

Act Petition on March 17. 2014. On April J.1014, new counsel was appointed for Defendant and

Defendant ·°' Motion for an extension of time in which to file an amended PCRA petition was
)
granted on May 7. 2014. The Amended PCRA Petition was tiled on July 7. 2014. Through his

Amended PCRA Petition. Defendant argued ineffective assistance of his prior counsel. Dennis

Di Martini. on the basis of counsel's failure to file a timely brief which resulted in the dismissal

of Defendant's first appeal. Defendant !3 sole request for relief was that his appeal rights be

reinstated nunc pro tune.

On September 19. 10 I 4. The Court signed an Order reinstating Defendant s appellate

rights and granting him 30 days in which to file a. notice of appeal, Defendant filed his notice of

Appeal on October 17. 2014. On October 31. 2014. the Court issued an Order directing

Defendant to file a 1925{b) Concise Statement of Matters Complained of on Appeal. Defendant

filed his Concise Statement the same day. raising: only two issues. These rwo issues, challenging

11
 Circulated 06/30/2015 03:25 PM

the sufficiency of the evidence with regard to the Receiving Stolen Property charge and the

) propriety of Defendant's sentence, are the same first two issues previously raised by Defendant's

counsel Dennis Di Martini in his l 925( b] Concise Statement (rum his first appeal,

ANALYSIS

The Court has reviewed Defendant's new Concise Statement and the (\VO issues now

raised appear to be the same as those previously addressed hy the Court in its first I 925ta}

Opinion. In the interests of judicial efficiency, rather than simply referring to an attached copy of

this Court's lengthy response to the twenty-one issues previnusly raised by Defendant' s counsel

Dennis Di:Man1n1. this Court instead will, for the convenience of appellate review, reproduce

here only those portions fmm the Court's first 1925(a) opinion which may be relevant to the two

issues being now raised again. Although the sentencing issues complained of in Defendant's first

Concise Statement were broader than those which arc raised at present appear co be. in order to

comprehensively address any of Defendant's legitimate sentencing issues. the Court's entire
)
sentencing analysis is here included with additional explanatory footnotes distinguishing
1
Defendant's first and second Concise Statements.

A. Sufficiency of t2,:idcncc

Defendant's first allegation or error is that the Court improperly held that the record

evidence was sufficient to support the finding that Defendant was guilty of receiving stolen

property; When reviewing a sufficiency of the evidence claim, the standard to be applied is

whether the evidence, when viewed in the light most favorable to the verdict winner, is sufficient

i Ncvcrthcicss. Defendant 1:-. hmned to rhose issues raised in his present 19251 b) Concise Statement. C'om. ,·. Rut]er,
571 P.J. -1-1 l. 445. 812 ,\.~d 63 l. 6'.U (JOO:? J ("'In lord, however, this Court climmated any aspect of discretion and
c.~1.abll~hed a bright-line rule for waiver under Ruic 192.5: ·[i]n order to preserve their claims for appellate review.
[ajppellants must comply whenever the trial court orders them t" file a Statement of Matters Complained of on
Appeal pursuant lo Ruic 19~5. Any issues not raised in a 19::!~(b} statement 1\"l"/1 ht' deemed waived. · lord, 7] 9 A.~d
at 309 ( emphasis added). Thus. \\ subject to a highly regulated process to

achieve legal transfer of ownership, Substantial evidence was presented at trial indicating that

Defendant. in selling the Rcdhawk revolver, enlisted Stewart, a known illegal firearms trafficker.

to act as his agent. When the Redhawk revolver was sold to Connor, no proof of ownership was

provided by Defendant and no legal transfer of ownership occurred, even though Connor made

known that his fulJ payment for the firearm was conditioned upon the transfer of ownership,

l\.T., 8.'8:l2. at .27-29. 40. The absence of any documentation demonstrating the legality of

Defendant's possession and sale of the Redhawk revolver as well as Defendant's decision to sell

the firearm with the help of a known illegal firearms trafficker permits an inference of guilty

knowledge. when combined with the evidence of Defendant's unexplained possession of the

firearm approximately three months after it was reported stolen. There is no indication that

Defendant challenges the sufficiency of the evidence for any other clement of the receiving

)
15
 Circulated 06/30/2015 03:25 PM

stolen property charge. Therefore, the Court concludes that sufficient evidence was presented at

) trial for the jury to find Defendant guilty of receiving stolen property.

B. Sentencing

[n his next issue on appeal, Defendant challenges various aspects of the sentence irnpnsed

upon him by this Court on October 3. 201:!. Specifically, Defendant states in his J925(b)

statement:

The Court abused its discretion in imposing an aggregate of consecutive
minimum and maximum sentences carefully designed to impose a virtual life
sentence contrary to the \ erdict by imposing the virtual maximum penalty
permitted under the Sentence Code, where the Offense Gravity Score (O.U.S.) for
Currying Firearm Without a License was incorrect nothing in the record could
support a finding. of either an aggravating circumstance or the death had a great
impact on the community, evidence in the record could support a finding of
mitigated circumstances. and amounts to an unwarranted expression of victim
family sympathy. and the monetary penalty disregarded the rehabilirarive needs of
Defendant and is tantamount to cruel and unusual punishment.t

De Cs 19~5(b) statement. The Superior Court has repeatedly stated:

) Sentencing is a matter vested in the sound discretion of the sentencing judge, and
a sentence wi II not he 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 arrived at a manifestly unreasonable
decision.

Common~walth v. Glass . .2012 Pa. Super. 137, 50 A.Jd 720. 7'27 (2012). ··The rationale behind

such broad discretion and the concomitantly deferential standard of appellate review is that the

sentencing court is "in the best position to de term inc the proper penalty for a particular offense

based upon an evaluation of the individual circumstances before it. ... Commonwealth ,·. Perrv,

= Defendant s prcse nt Cone i se Statem enr stares on b ... The Tri a I Court ab used its di screii on in i Illposing consec ut he
sentences, usmg an mcorrect offense gra\·ity ~.::0r1: 0f9 (loaded weapon) rather than '.\ which resulted in an unduly
harsh sentence, without considering Mr. Weekleys specific circumstances and rchabihtauve needs when compared
to the need to protect the public." J'hus, it appears that Defendant's present sentencing issue complained of on
appeal i~ m~re narrow and focused 1han that prev iously raised.
,,'
)
I6
 Circulated 06/30/2015 03:25 PM

612 Pa. 557. 565. 32 A.3d 232. 236 {2011) (citing Commonwealth,·. \Valls. 592 Pa. 557. 926

) A.2d 957 {1007) ). "Moreover. the sentencing court enjoys an institutional advantage to appellate

review, bringing to its decisions an expertise. experience. and judgment that should not lightly be

disturbed." Id. at 137. Nevertheless. the Court's discretion is not unfettered ... When imposing a

sentence. the sentencing court must consider the factors set out in 42 Pa.C.S. * 9721 (h l, that is.
the protection of the public. gravity of offense in relation to impact on victim and community.

and rehabilitative needs of the defendant" as well as the sentencing guidelines, Commonwealth

\', C4.b.-erson, 2011 Pa. Super. 255. 34 A.3d 135. 144 {Pa. Super.2011).

For several reasons. Defendant requests that the Court decrease the minimum and

maximum sentence for each count with which he was charged. run the sentences on the lesser

counts concurrently. and lower the monetary penalty. In response to Defendant" s overall request

for a reduction in his sentence. the Court offers the following general explanation for the

sentence imposed.' Following a lengthy jury trial. Defendant was convicted of third degree
)
murder. receiving stolen property. and firearms not to be carried without a license. The evidence

presented indicated that Defendant shot the victim at close range. execution style. behind the car

in the back of the head. The shot fired was powerful enough to destroy a large portion of the

victim's skull and travel through a nearby wall before coming to rest on the porch outside. The

firearm Defendant used was a .44 Magnum revolver with a l2-inch barrel. The jury determined

that the firearm was stolen and that Defendant knew or should have known that it was stolen.

Under 18 Pa.C.S.A. § 6105(a)(l) and (b). Defendant was prohibited from possessing or

transferring a firearm due to his prior conviction for burglary. which was found to be a home

invasion and therefore constituted a crime of violence, Defendant disregarded this prohibition

.tThi: Court also our lined the reasoning for its sentence during the sentencing hearing on October 3. ~O l.:!. ~-L
10 3 l~ . .it 97-100.
)
17
 Circulated 06/30/2015 03:25 PM

and committed third degree murder using an illegal weapon. Defendant's actions demonstrate

) that he poses a significant threat to the public, especially in light uf the fact that Defendant

exhibited no remorse or sympathy whatsoever for the loss suffered by the victim· s family.

Defendant · s crimes cannot be attributed to youth. nor can his mistakes be blamed upon his

environment or his chosen lifestyle being the only one available to him. Defendant was a 27·

year-old adult at the time these crimes were committed. Prior to committing th1..."SC crimes.

Defendant had numerous educational and athletic opportunities available to him. He received

athletic scholarships and attended five different colleges. hut, in one way or another, Defendant

neglected to take full advantage of these opportunities. Instead, Defendant chose a path that

ultimately led to the shooting. death of Cameron. In light of these considerations and after a

thorough review of the pre-sentence report 4. sentence guidelines. and applicable law. the Court,

acting within its discretion. imposed its sentence upon Defendant.

Defendant claims that the aggn:gatc sentence imposed constitutes a ··virtuaJ life

sentence." Defendant was sentenced 10 undergo imprisonment for 24 and one-half years to 52

years after being found guilty of third degree murder. receiving stolen property. and firearms not

to be carried without a license. At the time of sentencing, Defendant was 29 years old. Such a

sentence does not constitute a "virtual life sentence." Furthermore. Defendant cites no authority

demonstrating how this sentence, which is permitted by statute and within the sentencing

guidelines. is somehow a misapplication of the law or a manifestly unreasonable decision.

Defendant also claims in his allegation of sentencing error that the Court imposed the

virtual maximum penalty allowed by the Sentence Code. Defendant does not assert that tbe

sentence was either prohibited by statute or contrary to the sentencing guidelines themselves. Jn

" "[ WJh~re the trial court is tnforrncd by a pre-sentence report. it is presumed 1ha1 the court i~ aware of all
appropriate sentencing factors and considerations." Conunouweahh \", Vemura. '.!QQ9 Pa. Super. 96. 975 A.~d 11~8.
l 135 {~009).
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addition. Defendant does not indicate why a sentence that was, in his words. the "virtual

) maximum penall) ·· was not appropriate in this instance. Assuming Defendant is alleging that it

was error to run his sentences consecutively, the Court notes that .. the imposition of consecutive.

rather than concurrent. sentences may raise a substantial question in only the most extreme

circumstances. such as where the aggregate sentence is unduly harsh, considering the nature of

the crimes and the length of imprisonment." CummonwcaJth \', Lamonda. 2012 Pa. Super. 180.

5::! AJd 36.5. 372 (2012). Taking into account the nature of Defendan f~ crimes. it cannot be said

that the aggregate sentence was unduly harsh.

Defendant also suggests that the calculation of the offense gravity score for the count of

firearms not to be carried without a license was incorrect.i ln his Omnibus Post-Sentence

Application. Defendant states chat {he offense gravity score was determined to be nine. indicating

that the firearm Defendant carried was loaded. as opposed to seven. indicating that the firearm

was unloaded. Defendant argues that nothing was presented at trial showing that the firearm was
)
loaded while he carried it concealed. The jury was able to infer from circumstantial evidence that

the Redhawk revolver was loaded at the time of concealment. Substantial evidence presented at

trial demonstrated that Defendant frequently carried the firearm in his hook hag. lt is unlikely

that Defendant upon shooting Cameron. failed to conceal the firearm as he walked to Stewart's

residence. It is also illogical that Defendant would conceal the gun when it was unloaded. as he

did in Stewarts residence, hut carry it unconcealed when it was loaded. Furthermore, the jury

could infer from statements made during the trial that Defendant concealed the loaded weapon

prior to shooting Cameron. for example. Stewart testified that De fondant told him he "pulled out

his gun" before struggling with and eventually shooting Cameron. ~.T .. 8:8· l.2, at 126. The jury

~ Mere Defendant' s previous issee raised in his first appeal appears identical 10 that n(m argued in his instant appeal.
challenging applicanon of a gra\ i1y score c,f9 for a loaded weapon. as opposed ro 7 tor an unloaded weapon,
)
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could infer from this testimony that Defendant had concealed the loaded Redhawk rcvol ver,

) Therefore. the use of an offense gravity score of nine was appropriate in this case.

Defendant also asserts that nothing in the record could support a finding of an

aggravating circumstance or that the- victim's death caused a great impact on the community. The

Court notes that Defendant was not sentenced in the aggravated range. He was sentenced in the

standard range. but the sentences were run consecutively. Further. the sentence imposed was not

~oldy based on the impact Cameron's death had on the community. The Court stated its reasons

for the sentence imposed during the sentence hearing and previously in this Opinion. Apart from

again restating its rationale for the sentence imposed. the Court is unable to address this issue

other than to note that it acted within its discretion in sentencing Defendant. See Commonwealth

v. Boyer, 2004 Pa. Super. 303. 856 A.2d 149 (2004) (concluding that the court did not abuse its

discretion in imposing a series of consecutive. standard range sentences when the court

considen .xl the prescntcncc report and the particular circumstance of the crime).
)
Defendant next argues that evidence in the record could support a finding of mitigated

circumstances. In his Omnibus Post-Sentence Application. Defendant elaborates on this

argument .. stating that a minimum sentence in the mitigated range was warranted because

Defendant nearly completed a Bachelor's degree and had a reputation for being a peaceful

person. The Court was aware of these factors and weighed them along with ocher considerations

in determining Defendanr's sentence. For example, the Court weighed the factors raised by

Defendant along with the fact that Defendant had a previous conviction in a home invasion

burglary. In light of these and many other factors. Defendant was not entitled to a minimum

sentence in the mitigated range.

)
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Defendant also claims that the sentence imposed amounted to an unwarranted expression

') of "victim family sympathy." Again, the Court outlined its reasons for Defendant· s sentence in

this Opinion and during the sentencing hearing. Defendant offers no explanation as to why the

sentence imposed amounted to an unwarranted expression of sympathy for the victim's family,

Be fore issuing De tendant' s sentence, the C ourt did state: ··J will express my sympathy lo the

Cameron family for the loss that they have incurred." \:.T .. 10.J:12. at 97-98. Apart from this

statement. however. there is no indication that the Court was motivated by sympathy for the

victims family. and Defendant cites no authority holding that such a statement constitutes an

abuse of discretion.

COI\CLUSIO:"i

Based on the foregoing reasons, the Court concludes that the issues Defendant raises in

his present i 925(b) statement are without merit. Therefore. the Court respectfully submits {hat

the judgment of sentence should be affirmed. The Beaver County Clerk of Courts is hereby
)
directed to file the record of proceedings in this case with the Superior Court of Pennsylvania,

BY THE COLiR T.

J.

. ..,

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