Com. v. Freeman, M. A.

J-S34013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MATTHEW AMOS FREEMAN,

Appellant No. 2139 MDA 2014

Appeal from the Judgment of Sentence July 2, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002107-2012

BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 28, 2015

Matthew Amos Freeman appeals from the judgement of sentence of

fifteen to thirty months imprisonment after he was convicted of PWID and

possession of paraphernalia. We affirm.

On August 29, 2012, Waynesboro Police Detective Bryan Chappell

conducted an investigation in conjunction with the Franklin County Drug

Task Force into alleged drug trafficking in Waynesboro, Pennsylvania. N.T.,

5/30/14, at 18. The investigation began on August 20, 2012, after

Detective Chappell received information from the Pennsylvania State Police

that the occupants of 433 Hamilton Avenue had been purchasing large

quantities of growing equipment and material that was consistent with a

marijuana growing operation. Id. at 20. Detective Chappell testified that
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he arrived at the address around 4:00 a.m. and immediately smelled a

strong odor of fresh marijuana emanating from a large fifth-wheel-style

camper that was parked in the driveway.1 Id. An electrical extension cord

connected the camper to the residence. Id. at 21.

Detective Chappell left the scene, contacted two other members of the

task force, and returned with them to the home at 10:00 a.m. Id. at 22.

Again, he noticed the odor of marijuana emanating from the trailer. Id.

The officers knocked on the door to the camper but no one answered.

Detective Chappell walked over to the house and made contact with Teri

Rihel, the owner of the residence, and inquired if anyone lived in the

camper. Id. at 22, 48. Ms. Rihel told the officers that Appellant was living

in the camper, and after indicating that she did not have any keys to the

camper and could not let the officers inside, she helped them contact him.

Id. at 22, 25. Once Appellant exited the camper, the officers entered to

make sure that no one else was inside. Id. at 23. One officer remained on

the scene to secure Appellant and the evidence while Detective Chappell

obtained a search warrant. Id.

Upon his return, Detective Chappell executed the warrant and

searched the camper. Id. at 23-24. He testified that he believed the
____________________________________________

1
A fifth wheel camper is a trailer unit that connects to the tow vehicle by
way of a special hitch directly above the rear axle.
http://changingears.com/rv-sec-learn-type-fw.shtml

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camper had been used by Appellant to grow, dry, and store fresh marijuana

and also stated that the amount of marijuana seized from the camper

totaled 3.2 pounds. Id. at 26-38, 42. In addition, Detective Chappell found

devices used to smoke marijuana, a set of digital scales, racks to dry and

store fresh marijuana, a marijuana shredder, and eleven individually

wrapped bags of marijuana in a microwave. Id. at 27-28, 42. Each

individually wrapped bag weighed approximately one ounce, a common

weight at which marijuana is distributed. Id. at 65. The search also

revealed growing equipment such as lighting, ventilation, and water systems

for the marijuana plants. Id. at 52.

Jason Taylor, a detective with the Franklin County District Attorney’s

Office, testified as an expert witness for the Commonwealth and confirmed

Detective Chappell’s accounting of the weight of the individually wrapped

bags found in the microwave as well as the total seized amount of

marijuana. Id. at 77, 80. Detective Taylor also testified that Appellant

admitted to him during the interdiction that he had intended to deliver the

eleven one-ounce bags of marijuana to Ryan Dover, whom Detective Taylor

had previously investigated for drug crimes. Id. at 79, 86. Detective Taylor

opined that Appellant possessed the marijuana for distribution. Id. at 80.

Appellant declined to testify or call any witnesses, and a jury convicted

him of one count of PWID and one count of possession of drug

paraphernalia. The trial court imposed fifteen to thirty months incarceration

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for PWID and a concurrent term of six to twelve months for possession of

paraphernalia.2

Five days after trial, Appellant’s counsel filed a petition to withdraw

from this case and current counsel was appointed to represent him.
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2
Instantly, the trial court found that the mandatory minimum sentence of
twelve month’s imprisonment outlined in 18 Pa.C.S. § 7508(a)(1)(i) applied
in this case since the jury issued a special verdict that determined beyond a
reasonable doubt that Appellant possessed less than two but more than ten
pounds of marijuana. See N.T. Sentencing, 7/2/14, at 10-12.

Section 7508 is among several mandatory minimum sentencing
statues in Pennsylvania that this Court has determined to be unconstitutional
in their entirety under Alleyne v. United States, __ U.S. __, 133 S.Ct.
2151, 2155 (2013) (holding “any fact that increases the mandatory
minimum is an “element” that must be submitted to the jury.”). See
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc);
Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014). In
Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 2014), we opined that
§ 7508 would be unconstitutional even where, as here, a jury determined
the weight of the contraband beyond a reasonable doubt. Recently, in
Commonwealth v. Hopkins, No. 98 MAP 2013 (Pa. filed June 15, 2015),
our Supreme Court reaffirmed this general position regarding special
verdicts in relation to the mandatory minimum sentences entered pursuant
to 18 Pa.C.S. § 6317(a) concerning PWID within 1,000 feet of a school.

Notwithstanding the settled unconstitutionality of § 7508, we do not
vacate the judgment of sentence entered in the case at bar. Although the
trial court found § 7508 applicable in this case, the court did not impose the
mandatory minimum sentence of twelve months imprisonment. Instead, the
trial court imposed a standard range sentence of fifteen to thirty months
imprisonment based upon the offense gravity score and Appellant’s prior
record score. N.T, 07/02/14, at 12-13 (“[T]he court in its discretion under
what we believe are the correct guidelines for this circumstance[--] [t]hat is
a standard range of 12 to 18 months[--] imposed sentence of 15 [to 30]
months on count one.”). As the trial court imposed the judgment of
sentence based upon its discretion under the sentencing guidelines rather
than the constitutionally infirm statute, Appellant’s sentence is not illegal.

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Appellant filed a motion for post-sentence relief alleging that the jury’s

verdict was against the weight of the evidence presented at trial and

challenging the discretionary aspects of the judgment of sentence. The

latter claim asserted that the sentence was excessive in light of Appellant’s

rehabilitative needs, and therefore required a downward modification.

Appellant also asserted that he was eligible for the Recidivism Risk Reduction

Incentive Program (“RRRI”). 61 Pa.C.S. §§ 4501-4512. On December 15,

2014, the trial court denied all of the issues raised in the motion. As it

relates to RRRI, the trial court stated concluded that Appellant was

disqualified from entry into the RRRI program due to a 2002 misdemeanor

simple assault conviction in Texas. See Trial Court Opinion, 12/05/14, at

10.

A notice of appeal and concise statement of errors complained of on

appeal were subsequently filed with the Superior Court. Appellant presents

three issues for our review.

1. Was there insufficient evidence to conclude that the Appellant intended
to manufacture or deliver a controlled substance?

2. Did the trial court err in denying Appellant’s post sentence motion
because the jury’s verdict against the above-named Appellant was so
against the weight of the evidence as presented at trial so as to shock
one’s sense of justice?

3. Did the trial court abuse its discretion by imposing an unduly harsh
and unreasonable sentence because the trial court failed to consider
Appellant’s rehabilitative needs versus the public’s safety?

Appellant’s Brief at 7.

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First, Appellant challenges the sufficiency of the evidence that the

Commonwealth presented in support of its case against him. Id. at 22. He

argues that testimony given at trial by witnesses for the Commonwealth

failed to establish that he intended to deliver or manufacture a controlled

substance. Id.

When reviewing a sufficiency of the evidence claim, the Superior Court

must determine whether, after reviewing all of the trial evidence and

reasonable inferences that could be drawn in favor of the Commonwealth,

the jury could have found that each element of the offense was proven

beyond a reasonable doubt. Commonwealth v. Carpenter, 955 A.2d 411,

414 (Pa.Super. 1997). Instantly, Appellant challenges the PWID conviction.

In order to prove this offense, the Commonwealth must establish beyond a

reasonable doubt that the defendant possessed a controlled substance with

the specific intent or goal to deliver it to another. Commonwealth v.

Conaway, 791 A.2d 359 (Pa.Super. 2002); 35 Pa.C.S. § 780-113(a)(30).

In order to prove the requisite intent for delivery, the court may consider a

variety of relevant factors which include, “the manner in which the controlled

substance was packaged, the behavior of the defendant, the presence of

drug paraphernalia, and large sums of cash.” Commonwealth v.

Ratsamy, 934 A.2d 1233, 1237-1238 (Pa. 2007).

Appellant relies upon our Supreme Court’s ruling in Commonwealth

v. Keblitis, 456 A.2d 149 (Pa. 1983), to support his position that the

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Commonwealth failed to present sufficient evidence to sustain the jury

verdict. In Keblitis, the defendant’s conviction for PWID and manufacturing

marijuana was overturned after a court ruled that the fact that the police

observed the defendant performing work in a large garden that contained

marijuana, as well as many other types of plants, was insufficient to support

his conviction. Id. at 151. The court held that the police had presented no

evidence or testimony to show that the defendant had been performing

gardening duties for marijuana plants or that he was even aware of their

presence in the garden. Id. The court also concluded that the defendant’s

mere presence in the garden was not enough to support a conviction that he

was aware of the marijuana in the garden or the amount also found in the

house, due to the absence of proof that he actually resided there. Id.

However, Keblitis is not helpful in this case because Appellant

unquestionably possessed the marijuana. The relevant question herein is

whether he possessed it with the required intent to distribute it in violation

of § 780-113(a)(30). For the following reasons, we find that the

Commonwealth adduced sufficient evidence of Appellant’s intent to deliver.

Expert testimony from a witness who is qualified in the field of drug

distribution may be sufficient to establish the intent to deliver.

Commonwealth v. Bull, 618 A.2d 1019, 1021 (Pa.Super. 1993), aff’d, 650

A.2d 874 (Pa. 1994). Detective Chappell testified that a search of the

camper yielded 3.2 pounds of marijuana. N.T., 5/30/14, at 20. Detective

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Chappell also considered the manner in which the marijuana was packaged,

stored, and displayed throughout the camper. Detective Chappell and the

other police officers executing the search warrant found a bathroom

converted into a storage area where the fresh marijuana was being dried on

silver screens, a tub that contained a large amount of marijuana, two digital

scales, a marijuana shredder, eleven individually wrapped bags of marijuana

(each of which weighed roughly one ounce), and numerous items and

personal effects demonstrating Appellant’s residency in the camper. Id. at

26-28, 30-34, 37-38.

During cross-examination, Detective Chappell testified that he had

arrested others in the past who have had larger amounts of marijuana on

them. Id. at 45. However, he explained that the quantity Appellant

possessed was consistent with drug trafficking and inconsistent personal

use. Id. at 46. He further conceded that he has been involved in cases

where both buyers and sellers have had scales on them to ensure that they

are getting the requested amount of marijuana. When questioned about the

totality of the circumstances and factors considered in deciding to charge

Appellant with PWID, Detective Chappell responded that the presence of the

fresh marijuana on the drying racks in the camper was particularly important

since:

If I was a marijuana user I would not purchase fresh marijuana.
Basically, it needs to be dried. If you were to purchase fresh marijuana
it will become moldy very quick and in a very short time it will be no

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good…That’s part of the process in manufacturing and preparing the
product for delivery.

Id. at 64-65.

The Commonwealth later called Detective Taylor as an expert in drug

trafficking and interdiction. While Appellant did not challenge detective

Taylor’s expertise, we observe that Detective Taylor is an eleven-year

veteran of various drug task forces, including of the FBI’s Capital City Safe

Street Task Force, and he encountered drug trafficking operations while

patrolling the Caribbean as a member of the United States Coast Guard. Id.

at 71-72.

When questioned by Appellant’s counsel, Detective Taylor stated that,

although it was possible, it was not in his experience that people who buy

marijuana would carry a scale with them. Id. at 85. Detective Taylor also

testified that the sheer quantity of marijuana which was seized, coupled with

the presence of the scales, and Appellant’s statement that he intended to

deliver the packaged marijuana to a local drug distributor whom Detective

Taylor had previously investigated, evinced the requisite intent. Id. at 79.

The Commonwealth clearly presented sufficient, if not overwhelming,

evidence to establish beyond a reasonable doubt that Appellant possessed

marijuana with intent to deliver. In addition to Detective Taylor’s testimony

that Appellant admitted that he intended to distribute the marijuana to a

local drug dealer, expert witness testimony established the presence of a

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large quantity of pre-packaged one-ounce bags of marijuana, equipment

used to prepare fresh marijuana for delivery, and two sets of digital scales

for weighing the contraband. Appellant’s claim fails.

Next, we address whether the conviction for PWID was against the

weight of the evidence.3 “A motion for a new trial alleging that the verdict is

against the weight of the evidence is addressed to the discretion of the

court. Appellate review, therefore, is a review of the exercise of discretion,

not the underlying question whether the verdict is against the weight of the

evidence.” Commonwealth v. Brown, 648 A.2d. 1177, 1189 (Pa. 1994).

An appellate court will only reverse a lower court’s verdict if “it is so contrary

as to shock one’s sense of justice.” Commonwealth v. Champney, 832

A.2d 403, 408 (Pa. 2003). Appellant argues that the trial court has abused

its discretion by failing to find his conviction to be against the weight of the

evidence.

Appellant’s main challenge to the weight of the evidence presented by

the Commonwealth centers on his argument that the testimony given by the

Commonwealth’s witnesses, Detectives Chappell and Taylor, regarding the

significance of the amount of marijuana, its packaging, and the presence of
____________________________________________

3
Although Appellant’s post-sentence motion arguably challenged the weight
of the evidence supporting his conviction for possession of paraphernalia, he
abandoned that claim in his brief in support of the post-sentence motion and
he does not resurrect the argument herein. Accordingly, we do not address
it.

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J-S34013-15

digital scales, was so riddled with inconsistencies as to render the jury’s

verdict in the Commonwealth’s favor something that would “shock one’s

sense of justice.” We reject this claim.

“A verdict is not contrary to the weight of the evidence because of a

conflict in testimony or because the reviewing court on the same facts might

have arrived at a different conclusion than the fact-finder.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citing

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). Just because

the jury may have been able to find that the detectives’ statements

concerning similar equipment that they have discovered on both buyers and

sellers could have created a reasonable ambiguity as to whether Appellant

intended to deliver the marijuana does not require that they must find that

way.

Initially, we observe that Appellant fails to address, or even

acknowledge, the Commonwealth’s strongest evidence: Detective Taylor’s

testimony regarding Appellant’s admission that he intended to distribute the

marijuana to a known drug dealer. Furthermore, outside of some exposition

concerning statements made by the Commonwealth’s witnesses at trial,

regarding the possibility that a purchaser of marijuana could possess scales

and similar packaging materials, Appellant fails to elaborate on any alleged

“inconsistencies” in testimony. Moreover, he neglects to explain how the

purported inconsistencies overcome the weight of the remaining,

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uncontested evidence presented at trial. Determinations concerning the

relative credibility of witness testimony are properly for the jury to decide,

absent an abuse of discretion, and unless the evidence is clearly unreliable

or contradictory. Commonwealth v. McLean, 578 A.2d 4, 7 (Pa.Super.

1990). Herein, the jury credited the testimony of the Commonwealth’s

witnesses that Appellant was engaged in a marijuana enterprise. Thus, no

relief is due.

Next, we address Appellant’s claim that the trial court erred in failing

to determine his eligibility for the RRRI program. Appellant mistakenly

raised this argument as a component of his challenge to the discretionary

aspects of his sentence. Though not directly asserted, Appellant is

essentially arguing that the sentencing judge’s refusal to make him RRRI

eligible rendered his sentence illegal. This Court has previously held that a

defendant’s challenge to the court’s failure to impose the RRRI minimum

sentence is a non-waivable illegal sentencing claim. Commonwealth v.

Robinson, 7 A.3d 868, 871 (Pa. Super. 2010). Accordingly, we address

Appellant’s contention within the legality-of-sentence paradigm. As issues

relating to the legality of a sentence are questions of law, our standard of

review is de novo. Commonwealth v. Melius, 100 A.3d 682 (Pa.Super.

2014).

The RRRI program was designed to “ensure appropriate punishment

for persons who commit crimes.” 61 Pa.C.S. § 4502. An “eligible offender”

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for this program must satisfy certain criteria in order to qualify for it. 61

Pa.C.S. § 4503. The pre-requisites to enter the RRRI program require that

Appellant does not have: 1) a history of present or past violent behavior; 2)

a conviction with a sentence that included an enhancement for the use of a

deadly weapon; 3) a conviction or previous adjudication of delinquency for a

personal injury offense, except for third degree misdemeanor simple assault,

or an equivalent offense under the laws of another jurisdiction in the United

States or one of its territories; 4) a conviction or adjudication of delinquency

for any sexual offenses; and is not 5) awaiting trial or sentencing for

additional charges which would cause him to become ineligible for RRRI in

the future, or; 6) ever been sentenced according to mandatory minimums

for drug trafficking under Pa.C.S. § 7508(a)(1)(iii), 2(iii), 3(iii), 4(iii), 7(iii),

or 8(iii).4 61 Pa.C.S. § 4503 (1)-(6).

Sentencing courts are required to determine a defendant’s eligibility

for the RRRI program, and subject to one exception that does not apply to

this case, if a defendant is RRRI eligible, the court must impose an

alternative RRRI minimum sentence along with the minimum and maximum

terms of imprisonment that the court imposed as a matter of its sentencing

discretion under the Sentencing Code, 42 Pa.C.S. §§ 9701-9799.41.
____________________________________________

4
Appellant has in fact been previously found guilty of violating the
Controlled Substance, Drug, Device and Cosmetic Act, but he was never
sentenced pursuant to any of the above referenced statutes.

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Pursuant to the pertinent statute regarding the imposition of sentences of

total confinement,

The court shall determine if the defendant is eligible for a
recidivism risk reduction incentive minimum sentence under 61
Pa.C.S Ch. 45 (relating to recidivism risk reduction incentive). If
the defendant is eligible, the court shall impose a recidivism risk
reduction incentive minimum sentence in addition to a minimum
sentence and maximum sentence except, if the defendant was
previously sentence to two or more recidivism risk reduction
incentive minimum sentences, the court shall have the discretion
to impose a sentence with no recidivism risk reduction incentive
minimum.

42 Pa.C.S. § 9756(b.1).

In Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa.Super. 2014),

this Court found that a failure to impose an RRRI minimum sentence on an

eligible offender was a legal error. This has been previously recognized by

our own Supreme Court. “If the sentencing court concludes that a

defendant is eligible for an RRRI Act minimum sentence, or the prosecutor

has waived the eligibility requirements, then the court must impose the

minimum and maximum sentence as well as RRRI Act minimum sentence.”

Commonwealth v. Hansley, 47 A.3d 1180, 1187 (Pa. 2012) (emphasis

added).

Appellant argues that, since he is not disqualified from enrollment in

this program due to any of the foregoing provisions outlined in § 4503 (1)-

(6), the trial court was in error. Instantly, the issue of Appellant’s eligibility,

or lack thereof, was not addressed by either party or the trial court at

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sentencing. Appellant raised this issue for the first time in his post-sentence

motion. The trial court denied this aspect of the post-sentence motion on

the ground that Appellant’s conviction on July 24, 2002 for misdemeanor

simple assault in Texas disqualified him from eligibility. Trial Court Opinion,

12/05/14, at 10.

The determination whether the trial court erred in failing to find

Appellant RRRI eligible necessarily turns upon whether the Texas conviction

for misdemeanor simple assault is the equivalent of Pennsylvania’s simple

assault under 18 Pa.C.S. § 2701 (a) “when the offense is a

misdemeanor of the third degree.” 61 Pa.C.S. § 4503 (emphasis

added). In Pennsylvania, a third-degree misdemeanor is the lowest grade of

non-summary criminal offense. Pennsylvania grades simple assault as a

misdemeanor of the second degree unless it is committed in a fight or scuffle

by mutual consent. 18 Pa.C.S. § 2701(b). Under the narrow circumstances

of a fight by mutual consent, the offense is graded as a third-degree

misdemeanor, and therefore, it will not disqualify a person from RRRI

eligibility. § 2701(b)(1) (“a fight or scuffle entered into by mutual consent

. . . is a misdemeanor of the third degree”).

Texas law is incongruent. Pursuant to the Texas Penal Code, Class C

misdemeanors are the lowest grade of non-summary criminal offenses, and

all offenses that are designated misdemeanors without specification as to

punishment are considered to be Class C misdemeanors. See Tex., Penal

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Code Ann., § 12.03(b) (Vernon 2007). In that jurisdiction, a person

commits a simple assault graded as a Class C misdemeanor if he or she:

“intentionally or knowingly threatens another with imminent bodily injury,

including the person's spouse; or intentionally or knowingly causes physical

contact with another when the person knows or should reasonably believe

that the other will regard the contact as offensive or provocative.” Id. at §

22.01(a)(2-3) and (c).5

The two misdemeanor simple assault offenses are not equivalent. In

fact, the elements of the Class C misdemeanor for simple assault in Texas

align more closely with a simple assault graded as a second-degree

misdemeanor in Pennsylvania. Moreover, a fight by mutual consent, the

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5
The relevant section of the Texas Penal Code provides,

§ 22.01. Assault

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury
to another, including the person's spouse;

(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse;

....

(c) An offense under Subsection (a)(2) or (3) is a Class C
misdemeanor[.]

Tex., Penal Code Ann. § 22.01(a) and (c).

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only non-disqualifying form of simple assault for RRRI purposes, is not even

criminal in Texas provided that the defendant does not threaten or inflict

serious bodily injury. Indeed, Texas views a fight by mutual consent as a

qualified defense to simple assault. See id. at § 22.06 (“The victim's

effective consent or the actor's reasonable belief that the victim consented

to the actor's conduct is a defense to prosecution under Section 22.01

(Assault). . . . if . . . (1) the conduct did not threaten or inflict serious bodily

injury[.]”).

Thus, Appellant’s ungraded misdemeanor assault conviction in Texas

was not based on his participation in a fight or scuffle entered into by

consent as that conduct would have either been a defense to simple assault

under § 22.06 or, if he inflicted serious bodily injury, an aggravated assault

under § 22.02. As the two offenses cannot be viewed as equivalent, the trial

court did not err in holding that Appellant’s prior conviction for misdemeanor

simple assault in Texas rendered him RRRI ineligible.

Appellant’s final issue is that the trial court abused its discretion by

imposing a harsh and unreasonable sentence on him through a failure to

balance his rehabilitative needs, and other mitigating circumstances, with

the public’s safety. “The standard of appellate review of discretionary

aspects of sentencing is an abuse of discretion.” Commonwealth v.

Archer, 722 A.2d 203, 211 (Pa.Super. 1998). Instantly, Appellant argues

that the sentence was not appropriate because the trial court failed to

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impose an individualized sentence that considered the impact of the offense

on the public, his remorse, and his rehabilitative needs pursuant to §

9721(b).

Four prerequisites must be met before this Court will address the

merits of an appeal concerning the discretionary aspect of sentencing.

Commonwealth v. Lebarre, 961 A.2d 176, 178 (Pa.Super. 2008).

Pursuant to these requirements, an appellant must: (1) file a timely notice

of appeal; (2) raise the issue at sentencing or in a post sentence motion and

preserve it in a court-ordered Rule 1925(b) statement; (3) include a

statement of the reasons relied upon for the appeal in compliance with

Pa.R.A.P 2119(f),6 and; (4) present a substantial question that the sentence

appealed from is not appropriate under the sentencing code. Id.

Instantly, Appellant’s notice of appeal was timely filed, the issue was

raised in his post-sentence motion and preserved in his Rule 1925(b)

statement. Appellant’s brief included a Pa.R.A.P 1925(b) statement setting

forth this issue and the reasons relied upon for his appeal. Finally, we

observe that Appellant’s contention presents a substantial question that the

sentence was inappropriate under the sentencing guidelines. See
____________________________________________

6
Pursuant to Pa.R.A.P 2119(f), “An Appellant who challenges the
discretionary aspects of a sentence of a criminal matter shall set forth in a
separate section of the brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of the
sentence.”

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Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa.Super. 2008) (claim

that sentencing court abused its discretion by failing to impose individualized

sentence due to failure to consider totality of circumstances raised

substantial question that required review). Thus, we address the merits of

Appellant’s discretionary sentencing claim.

Appellant argues that the trial court abused its discretion and imposed

an unreasonable sentence on him when he was given fifteen to thirty

months for PWID and six to twelve months for possession of drug

paraphernalia. As it stands, both of these sentences fall within the standard

range of the sentencing guidelines in light of Appellant’s prior record score

and the applicable offense gravity scores. The crux of Appellant’s contention

is that the trial court failed in its requirement to impose an individualized

sentence under 42 Pa.C.S. § 9721(b) by properly weighing the protection of

the public, the impact of the offense on the community, and rehabilitative

needs of the Appellant.

The following principles are relevant to our review. We must vacate a

sentence and remand to the sentencing court with instructions if we find

that:

1. The sentencing court purported to sentence in the guidelines but
applied the guidelines erroneously.

2. The sentencing court sentenced within the sentencing guidelines but
the case involves circumstances where the application of the guidelines
would clearly be unreasonable.

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3. The sentencing court sentenced outside the guidelines and the
sentence is unreasonable.

42 Pa.C.S. § 9781(c).

Sentences that fall within the standard range of the sentencing

guidelines are proper unless there are circumstances which render the

application of these guidelines clearly unreasonable. Commonwealth v.

Feucht, 955 A.2d 377, 384 (Pa.Super. 2008). Appellant’s argument

implicates the second aspect of the above-referenced provision. He relies on

several factors to establish that the totality of his personal life circumstances

make the length of his sentence too harsh, which he argues the trial court

failed to consider during sentencing.

Appellant asserts that the court neglected to consider that he was an

excellent student and only ten credits short of earning his Bachelors’ degree

from Penn State University when he was sentenced. Appellant also notes

that his father has been sick and that the trial court erred by failing to

consider what effect the length of sentencing would have in requiring that

his incarceration take place at a state institution that was much further away

from him than the county jail. In addition, Appellant argues that the trial

court erred by failing to take into account that the crimes of which he was

convicted had a minimal impact on the public and that he expressed remorse

for his actions during sentencing. Specifically, he asserts that, although his

prior record score is high, the impact of these particular crimes on the public

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was minimal because there was no evidence that he had ever tried to sell

marijuana to anyone in the public. Appellant asserts that the trial court’s

failure to properly consider these factors resulted in a failure to give him a

proper individualized sentence in accordance with § 9721(b).

The Commonwealth’s counterarguments center on the assertion that

the sentences imposed were appropriately within the standard range of the

sentencing guidelines. It asserts that Appellant’s high prior record score of

five, which included a prior conviction for PWID (marijuana), clearly

indicates that he is a recidivist. The Commonwealth highlighted that after

Appellant’s arrest during 2009 for the same offense, he had been sentenced

to six to twenty-three months in the Franklin County prison, and yet still

committed the identical crime shortly after he was released.

The record belies Appellant’s contention that the trial court did not

impose an individualized sentence. At the outset we observe that the trial

court reviewed a pre-sentence report. Hence it is presumed that the trial

court was aware of the relevant information regarding his character and

weighed its consideration appropriately. See Commonwealth v. Naranjo,

53 A.3d 66 (Pa.Super. 2012) (sentencing court’s decision to emphasize

certain factors over Appellant’s remorse and potential for rehabilitation did

not render sentence unreasonable). Moreover, as it relates to Appellant’s

contention that he was not going to place the drugs into public commerce,

there is no other way to characterize Appellant’s argument here than as

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completely disingenuous in light of the facts of the trial court record. As

noted supra, Detective Taylor testified unequivocally that Appellant admitted

to him that he intended to sell the bags of marijuana to a known drug

trafficker. N.T., 5/30/14, at 79.

Accordingly, for the forgoing reasons, we find the trial court did not

abuse its discretion in sentencing Appellant to fifteen to thirty months

imprisonment. Appellant acknowledges that both of his sentences are within

the standard range of the sentencing guidelines given his prior record and

the offense gravity scores. Moreover, in light of the fact that the certified

record verifies the trial court’s consideration of the relevant sentencing

factors, the court’s decision to emphasize certain factors over others was

within its purview of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2015

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