J-S44006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICHOLAS LEE MALONE
Appellant No. 1033 WDA 2014
Appeal from the Judgment of Sentence May 9, 2014
in the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000450-2013
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 16, 2015
Appellant Nicholas Lee Malone appeals from the judgment of sentence
entered in the Bedford County Court of Common Pleas following his jury trial
conviction for burglary,1 criminal conspiracy to commit burglary,2 criminal
trespass,3 criminal conspiracy to commit criminal trespass,4 receiving stolen
property,5 and theft by unlawful taking.6 We affirm.
____________________________________________
1
18 Pa.C.S. § 3502(a)(2).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 3503(a)(1)(ii).
4
18 Pa.C.S. § 903.
5
18 Pa.C.S. § 3925(a).
6
18 Pa.C.S. § 3921(a).
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On April 1, 2013, Appellant and his girlfriend broke into a home in
Schellsburg, Napier Township, Bedford County, stole items from the home,
traveled to Harrisburg, and then traded the stolen items for heroin. On
March 14, 2014, Appellant was tried and convicted by a jury as stated,
supra. On May 9, 2014, the trial court sentenced Appellant to an aggregate
of 7 to 20 years of imprisonment. Appellant filed post-sentence motions
that the trial court denied on May 22, 2014. On June 23, 2014, Appellant
timely appealed.7 Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant raises the following issues for our review:
1. Whether the trial court erred and abused its discretion when
it denied Appellant’s motion in limine seeking the preclusion of
the introduction of crimen falsi evidence pertaining to Appellant?
2. Whether the trial court erred and abused its [discretion]
when it denied Appellant’s motion in limine seeking the
preclusion of the introduction of evidence pertaining to the
heroin addiction of Appellant and his alleged co-conspirator?
3. Whether the trial court erred and abused its discretion when
it denied Appellant’s motion in limine seeking the preclusion of
the use of a copy of Appellant’s recorded statement as it was not
the original as required by Pa.R.E. 1002 which calls into question
its authenticity pursuant to Pa.R.E. 1003?
4. Whether the trial court erred and abused its discretion when
it denied Appellant’s timely filed post-sentence motions without a
hearing?
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7
The 30th day technically fell on June 22, 2014, a Sunday. Accordingly,
Appellant had until the next business day, Monday, June 23, 2014, to timely
file his notice of appeal. See Pa.R.Crim.P. 720(A)(2); 1 Pa.C.S. § 1908.
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5. Whether the trial court erred and abused its discretion when
it imposed an excessive sentence of an aggregate term of
imprisonment of not less than seven (7) years nor more than
twenty (20) years in light of all factors presented at the
sentencing hearing?
6. Whether the trial court erred and abused its discretion when
it denied Appellant’s timely filed post-sentence motion
challenging the sufficiency and weight of the evidence utilized by
the jury to convict Appellant of all counts of the information?
7. Whether the trial court erred and abused its discretion when
it failed to merge the sentences imposed for the offenses of
burglary and criminal trespass?
Appellant’s Brief, p. 7-8 (all capitals omitted).
A. Evidentiary Claims
Appellant’s first three issues concern trial court evidentiary rulings.
Appellant argues the trial court erred in denying his motions in limine
requesting the Commonwealth be precluded from introducing into evidence
(1) his previous crimen falsi convictions, (2) his heroin addiction, and (3) a
copy of his recorded statement. See Appellant’s Brief, pp. 12-19. Appellant
is incorrect.
In reviewing the grant or denial of motions in limine, this Court applies
an abuse of discretion standard of review. Commonwealth v. Stokes, 78
A.3d 644, 654 (Pa.Super.2013). “An abuse of discretion will not be found
based on a mere error of judgment, but rather exists where the court has
reached a conclusion which overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of partiality,
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prejudice, bias or ill-will.” Commonwealth v. Alicia, 92 A.3d 753, 760
(Pa.2014).
This Court has stated the well-established standard of review for
admission of evidence claims as follows:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the
trial court upon a showing that it abused its discretion or
committed an error of law. Thus, [this Court’s] standard of
review is very narrow. To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012).
1. Appellant’s crimen falsi convictions.
First, Appellant claims the trial court erred in ruling that, if Appellant
testified, the Commonwealth could introduce his crimen falsi convictions as
impeachment. This claim lacks merit.
Regarding the admission of crimen falsi convictions, the Pennsylvania
Rules of Evidence provide, in relevant part, as follows:
Impeachment by Evidence of a Criminal Conviction
(a) In General. For the purpose of attacking the credibility of
any witness, evidence that the witness has been convicted of a
crime, whether by verdict or by plea of guilty or nolo contendere,
must be admitted if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since
the witness’s conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only
if:
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(1) its probative value substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party has a
fair opportunity to contest its use.
Pa.R.E. 609.
Here, Appellant had prior convictions for burglary and retail theft, both
crimen falsi crimes. See Commonwealth v. Harris, 884 A.2d 920, 925
(Pa.Super.2005) (burglary considered crimen falsi conviction admissible for
impeachment purposes); Commonwealth v. Howard, 823 A.2d 911, 913
(Pa.Super.2003) (retail theft is a crimen falsi conviction admissible for
impeachment purposes). Further, the convictions were under 10 years old.
Therefore, these crimes fell squarely within the ambit of Pa.R.E. 609, and
the trial court neither erred nor abused its discretion in ruling that the
Commonwealth would be allowed to introduce them for impeachment
purposes, if Appellant chose to testify.8
2. Evidence pertaining to Appellant’s heroin addiction.
Next, Appellant claimed the trial court erred in permitting the
Commonwealth to elicit evidence pertaining to his heroin addiction. This
claim also lacks merit.
In pertinent part, Pennsylvania Rule of Evidence 404 provides as
follows:
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8
Appellant did not testify at trial.
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(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b) (emphasis provided).
Here, Appellant’s co-defendant – his girlfriend at the time they
committed the crimes – testified that she and Appellant perpetrated the
burglary to support their heroin addictions. The trial court allowed the
Commonwealth to introduce this evidence to explain Appellant’s motive to
commit the crime.9 The trial court explained as follows:
[T]he probative value of the evidence [regarding Appellant’s
heroin addiction] outweighed any potential prejudicial effect,
especially since the proffered evidence was not necessarily a
criminal act directly related to the charges for which [Appellant]
was on trial. This case involved a seemingly random burglary in
a rural area with no indication of a relationship between the
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9
We note that the trial court also determined that, given the nature of the
evidence, the few days’ notice the Commonwealth provided Appellant of its
intent to introduce evidence regarding Appellant’s heroin addiction was
sufficient. See 1925(a) Opinion, p. 2.
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victim and the perpetrator. Therefore, we found evidence
regarding motive to be of particular probative value in this case.
And, we found the probative value to far outweigh the slim
possibility of a jury convicting [Appellant] of [b]urglary due
solely to a drug addiction.
Trial Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion”), pp. 2-3. The trial
court further instructed the jury to consider this evidence only for the
purpose of motive. See N.T. 3/14/2014, pp. 260-61.10
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10
The trial court instructed the jury as follows:
You have heard evidence tending to prove that [Appellant] used
controlled substances, and specifically heroin. Now this is the
conduct for which he is not on trial here today. Particularly, I
am speaking of the testimony of Lakyn Checkeye. Now, this
evidence is before you for a limited purpose. And that is for the
purpose of tending to show motive to commit the crimes that of,
for which he is on trial. This evidence must not be considered by
you in any way other than for the purpose I just stated. Again,
the own [sic] purpose that you may consider this evidence is to
show motive to commit the crimes of which he is charged in this
trial.
You must not regard this evidence as showing that [Appellant] is
a person of bad character or criminal tendencies from which you
might be inclined to infer guilt. In other words, you cannot use
the fact that if you -- if you believe Lakyn Checkeye’s testimony
regarding that issue, you must not believe that testimony about
[Appellant] using controlled substances as evidence that he
actually committed the [b]urglaries [sic] or convict him of that
just because he used controlled substances. You can only use
that to see if you find that there was motive to commit the
actual crimes that are charged in this case.
N.T. 3/14/2014, pp. 260-61.
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We discern no abuse of discretion in the trial court’s admission of the
heroin addiction evidence. We agree with the trial court that the
Commonwealth provided ample notice of its intent to introduce this
evidence. We further conclude that the trial court properly instructed the
jury regarding its consideration of the heroin addiction evidence.
Accordingly, Appellant’s heroin addiction evidentiary claim fails.
3. Appellant’s recorded statement.
Thirdly, Appellant claims the trial court erred in admitting into
evidence a duplicate recording of Appellant’s confession. Again, Appellant’s
claim lacks merit.
The “best evidence rule” requires the production of the original of a
writing, recording, or photograph to prove its contents. See Pa.R.E. 1002.11
However, Pennsylvania’s Rules of Evidence expressly provide for the
admission of duplicates as follows:
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the original
unless a genuine question is raised about the original’s
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11
Rule 1002 states:
Rule 1002. Requirement of the Original
An original writing, recording, or photograph is required in order
to prove its content unless these rules, other rules prescribed by
the Supreme Court, or a statute provides otherwise.
Pa.R.E. 1002.
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authenticity or the circumstances make it unfair to admit the
duplicate.
Pa.R.E. 1003. Further, this Court has explained the limits of the best
evidence rule as follows:
The “best evidence” rule, now established in Pa.R.E. 1002, limits
the method of proving the terms of a writing to the presentation
of the original writing, where the terms of the instrument are
material to the issue at hand, unless the original is shown to be
unavailable through no fault of the proponent. The rule applies
to the proof of the contents of documents when the contents of
those documents are material to, rather than mere evidence of,
the issues at bar. Beyond that, the evidentiary ruling of the trial
court allowing “secondary evidence” should not be reversed
except for a grave abuse of discretion[.]
Commonwealth v. Townsend, 747 A.2d 376, 379-80 (Pa.Super.2000)
(internal citations and some quotation marks omitted).
Here, police originally digitally recorded Appellant’s confession, then
emailed the digital file, then transferred the file to the CD admitted into
evidence at trial. As the trial court explained:
[T]he best evidence rule is not applicable here. . . . Here, the
actual tape recording [of Appellant’s confession] was not
essential to proving any of the criminal charges. Rather, the
taped confession was supplemental evidence tending to show
[Appellant’s] guilt. The best evidence rule is therefore
inapplicable to the tape recording, and the Commonwealth
needed only to authenticate the copy for admission, which it did.
1925(a) Opinion, p. 3.
Again, we discern no abuse of discretion in the trial court’s admission
of this evidence. We agree with the trial court that the best evidence rule is
inapplicable to this recording. We further agree that the Commonwealth
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sufficiently authenticated the recording.12 Accordingly, this evidentiary claim
also fails.
B. Post-Sentence Motion Claims
Appellant’s fourth and sixth claims concern the trial court’s disposition
of his post-sentence motion. See Appellant’s Brief, pp. 19-20, 23-25.
Appellant claims, first, that the trial court erred in denying his post-sentence
motion without a hearing, and, second, that the trial court erred in denying
his post-sentence motion on the merits. See id. These claims lack merit.
1. Denial of the post-sentence motion without a hearing.
Appellant’s post-sentence motion requested reconsideration and/or
modification of his sentence. Regarding such optional post-sentence
motions, the Pennsylvania Rules of Criminal Procedure require the trial court
to “determine whether a hearing or argument on the motion is required, and
if so, [] schedule a date or dates certain for one or both.” Pa.R.Crim.P.
720(B)(2)(b). “There is no requirement that oral argument be heard on
every post-sentence motion.” Pa.R.Crim.P. 720, Comment.
Here, Appellant filed a timely post-sentence motion. The trial court
reviewed the motion, determined a hearing was not required, and denied the
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12
We further note that the trial record supports the trial court’s observation
that, “other than bald assertions unsupported by any testimony, [Appellant]
failed to raise any specific objections to the authenticity of the tape
recording.” 1925(a) Opinion, p. 3.
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motion. The trial court acted within its power and discretion in denying the
motion without a hearing. Pa.R.Crim.P. 720(B)(2)(b). Appellant’s
suggestion that the trial court was required to schedule a hearing or
argument on his post-sentence motion lacks merit.
2. The post-sentence motion’s weight and sufficiency of the evidence claims
lack merit.
Appellant also claims the trial court erred in denying his post-sentence
motion on the merits. See Appellant’s Brief, pp. 24-25. Appellant is
incorrect.
To the extent Appellant’s post-sentence motion raised claims regarding
the sufficiency and weight of the evidence,13 Appellant effectively requested
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13
Appellant’s post-sentence motion reads, in its entirety:
POST SENTENCE MOTION
And now, comes Defendant, by and through the Public
Defender’s Office, and respectfully moves this Court to grant the
following relief:
Motion for Reconsideration and/or Modification of
Sentence:
1. Defendant was sentenced by this Honorable Court on or about
May 9, 2014, to an aggregate term of not less than seven (7)
years or more than twenty (20) years to be served in a state
correctional institution.
2. Defendant challenges the sufficiency and weight of the
evidence used to convict him of the offenses in which he was
charged.
(Footnote Continued Next Page)
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the trial court grant him a post-sentence judgment of acquittal. “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.” Commonwealth v. Foster, 33 A.3d 632, 635 (Pa.Super.2011)
(citation omitted).
The Crimes Code defines burglary, in relevant part, as follows:
(a) Offense defined.--A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
...
_______________________
(Footnote Continued)
3. Defendant believes that the sentence was excessive in light of
all the factors presented.
4. Defendant believes this Honorable Court erred in failing to
merge the sentences of Burglary and Criminal Trespass.
WHEREFORE, Defendant respectfully requests this Honorable
Court to enter an Order consistent with that herein above set
forth.
Appellant’s Post-Sentence Motion, May 19, 2014, p. 1.
We note that the plain text of this post-sentence motion indicates it is a
motion for reconsideration or modification of sentence. To the extent the
post-sentence motion mentions weight and sufficiency of the evidence,
Appellant wholly failed to state with specificity or otherwise develop these
alleged “challenges”. See Appellant’s Post-Sentence Motion. Therefore,
only with the greatest of difficulty and/or the most lenient of standards
would we find such a motion adequately raised either a weight or sufficiency
of the evidence claim for post-sentence motion purposes. However, because
Appellant is clearly not entitled to relief on these claims, we will address
them as though they were properly raised.
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(2) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the
offense no person is present[.]
18 Pa.C.S. § 3502(a)(2). The Crimes Code further defines “occupied
structure” as “[a]ny structure, vehicle or place adapted for overnight
accommodation of persons, or for carrying on business therein, whether or
not a person is actually present.” 18 Pa.C.S. § 3501.
The Crimes Code defines criminal trespass, in relevant part, thusly:
(a) Buildings and occupied structures.--
(1) A person commits an offense if, knowing that he is not
licensed or privileged to do so, he:
...
(ii) breaks into any building or occupied structure or
separately secured or occupied portion thereof.
18 Pa.C.S. § 3503.
The Crimes Code defines the crime of receiving stolen property as
follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally receives, retains, or disposes of movable property
of another knowing that it has been stolen, or believing that it
has probably been stolen, unless the property is received,
retained, or disposed with intent to restore it to the owner.
18 Pa.C.S. § 3925(a).
Regarding theft by unlawful taking, the Crimes Code provides, in
pertinent part:
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(a) Movable property.--A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.
18 Pa.C.S. § 3921(a).
Finally, the crime of criminal conspiracy implicates the following
principles. “The material elements of conspiracy are: (1) an intent to
commit or aid in an unlawful act, (2) an agreement with a co-conspirator
and (3) an overt act in furtherance of the conspiracy.” Commonwealth v.
Gross, 101 A.3d 28, 34 (Pa.2014) (internal quotations and citation
omitted); see also 18 Pa.C.S. § 903. The overt act necessary to establish
criminal conspiracy need not be committed by the defendant; it need only be
committed by a co-conspirator. Commonwealth v. McCall, 911 A.2d 992,
996 (Pa.Super.2006).
Further, this Court has explained the agreement/intent elements of
conspiracy as follows:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.
Thus, a conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and
the overt acts of the co-conspirators sufficiently prove the
formation of a criminal confederation. The conduct of the parties
and the circumstances surrounding their conduct may create a
web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.
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McCall, 911 A.2d at 996-97. The factors of the relation between the
parties, knowledge of and participation in the crime, and the circumstances
and conduct of the parties surrounding the criminal episode, “may coalesce
to establish a conspiratorial agreement beyond a reasonable doubt where
one factor alone might fail.” Commonwealth v. Bricker, 882 A.2d 1008,
1017 (Pa.Super.2005).
Here, the Commonwealth’s evidence against Appellant consisted, inter
alia, of the detailed testimony of his co-conspirator14 and Appellant’s own
recorded confession to the crimes. This evidence sufficiently established the
elements of all charged crimes. Accordingly, the trial court properly denied
Appellant’s request for a judgment of acquittal.15
C. Sentencing Claims
Appellant’s fifth and seventh claims concern the sentence imposed by
the trial court. See Appellant’s Brief, pp. 20-23, 25-27. Appellant’s fifth
claim challenges the discretionary aspects of his sentence; his seventh claim
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14
The co-conspirator – Appellant’s girlfriend at the time of the crimes – was
an eyewitness to, and participant in, the crimes.
15
Appellant’s weight of the evidence claim merits no discussion. This claim
fails for the simple reason that, aside from cross-examination, Appellant
proffered no contrary testimony or evidence against which to weigh the
Commonwealth’s evidence. To the extent Appellant claims the testimony of
the Commonwealth’s witnesses was unbelievable, we defer to the jury’s
credibility determinations. Commonwealth v. Smith, 97 A.3d 782, 790
(Pa.Super.2014) (“[T]he [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.”).
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argues the trial court improperly declined to merge his burglary and criminal
trespass convictions for sentencing purposes. See id. Neither claim affords
Appellant relief.
1. The discretionary aspects of sentence claim.
Appellant claims the trial court imposed an excessive sentence by
failing to consider his drug use and rehabilitative needs. See Appellant’s
Brief, pp. 20-23. This claim raises a challenge to the discretionary aspects
of the Appellant’s sentence.
“Challenges 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 satisfy the following 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.
Allen, 24 A.3d at 1064. “The determination of whether a particular issue
raises a substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005).
“Generally, however, in order to establish a substantial question, the
appellant must show actions by the sentencing court inconsistent with the
Sentencing Code or contrary to the fundamental norms underlying the
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sentencing process.” Commonwealth v. Titus, 816 A.2d 251, 255
(Pa.Super.2003).
Here, Appellant filed a timely notice of appeal, and preserved his
issues in a motion for reconsideration of sentence. However, despite his
contention to the contrary,16 Appellant’s brief does not include a statement
of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.
2119(f).17 See Appellant’s Brief, p. 21. This technical noncompliance would
be a fatal defect had the Commonwealth objected in its brief. See, e.g.,
Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.Super.2012) (“If a
defendant fails to include an issue in his Rule 2119(f) statement, and the
Commonwealth objects, then the issue is waived and this Court may not
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16
Appellant claims his brief includes a Rule 2119(f) statement, and the
brief’s index includes a notation that the statement pursuant to Pa.R.A.P.
2119(f) appears on page 13. See Appellant’s Brief, pp. 2, 21. Appellant’s
brief, however, includes no Pa.R.A.P. 2119(f) statement. Page 13 of
Appellant’s brief is the second page of his argument that the trial court
improperly ruled that the Commonwealth could introduce his crimen falsi
convictions, if he chose to testify.
17
In pertinent part, Rule 2119 provides:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for the allowance of appeal
with respect to the discretionary aspects of a sentence. The
statement shall immediately precede the argument on the merits
with respect to the discretionary aspects of the sentence.
Pa.R.A.P. 2119(f).
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review the claim.”); see also Commonwealth v. Brougher, 978 A.2d 373,
375 (Pa.Super.2009) (“[C]laims relating to the discretionary aspects of a
sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f)
statement in his brief and the opposing party objects to the statement’s
absence.”); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987)
(failure to comply with procedural requirements for review of discretionary
aspects of sentence claims is fatal to claim). However, because the
Commonwealth did not object in its brief,18 we may overlook the omission of
a Pa.R.A.P. 2119(f) statement and reach the merits of Appellant’s issue.
See Commonwealth v. Gould, 912 A.2d 869, 872 (quoting
Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super.2005) (“[i]n the
absence of any objection from the Commonwealth, we are empowered to
review claims that otherwise fail to comply with Rule 2119(f)”) (internal
brackets omitted). Accordingly, we now determine whether Appellant has
raised a substantial question for review and, if so, proceed to a discussion of
the merits of the claim. Pa.R.A.P. 2119(f); Tuladziecki, supra.
“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.
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18
See Commonwealth’s Brief, pp. 15-18.
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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. “[A] claim of
excessiveness that is raised against a sentence within the statutory limits
fails to raise a substantial question as a matter of law.” Commonwealth v.
Mouzon, 812 A.2d 617, 623 (Pa.2002). However, “a substantial question
exists when a sentencing court imposed a sentence in the aggravated range
[of the Sentencing Guidelines] without considering mitigating factors.”
Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12 (Pa.Super.2010) (citing
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003))
(emphasis in original).
Here, Appellant alleges that the trial court imposed an unreasonable
sentence because it imposed an aggravated range sentence and failed to
properly consider certain alleged mitigating factors. See Appellant’s Brief,
pp. 20-23. Accordingly, Appellant raises a substantial question for review.
See Rhoades, supra. However, Appellant’s claim fails on the merits.
We review discretionary aspects of sentence claims under the following
standard of review:
If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.
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Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. See generally N.T. 5/9/2014. The trial court
imposed a sentence that was consistent with the protection of the public,
took into account the gravity of the offense as it related to the impact on the
life of the victim and on the community, and considered the Appellant’s
rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id. The trial
court considered the presentence investigative report,19 Appellant’s criminal
background, the circumstances of the crimes, the sentencing guidelines,20
Appellant’s allocution, his lack of remorse, the arguments of counsel, and
Appellant’s drug addiction and rehabilitative needs – the very mitigating
factors Appellant alleged the trial court ignored. See N.T., 7/1/2014, pp. 4-
13. Accordingly, Appellant’s excessiveness claim fails on the merits.
____________________________________________
19
We note that, where a sentencing court had the benefit of a presentence
investigation report, we can assume the sentencing court was aware of
relevant information contained therein and weighed that information along
with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).
20
The Commonwealth argued, and the trial court noted, that the sentencing
guidelines employed in sentencing were low in that they did not take into
account all of Appellant’s applicable convictions. See N.T. 5/9/2014, p. 10.
To the extent the trial court’s sentencing of Appellant based on incorrect
guidelines represents error, we find such error harmless because it created a
downward departure from the correct guidelines.
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2. The merger claim.
Finally, Appellant argues the trial court should have merged his
burglary and criminal trespass convictions for sentencing purposes. See
Appellant’s Brief, pp. 25-27. Appellant is incorrect.
A claim that a trial court should have merged convictions for
sentencing purposes raises a challenge to the legality of the sentence.
Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.Super.2012).
Accordingly, our standard of review is de novo and our scope of review is
plenary. Id.
Pennsylvania’s Sentencing Code governs merger and provides, in
pertinent part:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense.
42 Pa.C.S. § 9765. “[A] plain reading of § 9765 reveals the General
Assembly’s intent that crimes with different statutory elements be punished
separately.” Commonwealth v. Taggart, 997 A.2d 1189, 1200
(Pa.Super.2010) (quoting Commonwealth v. Baldwin, 985 A.2d 830, 831
(Pa.2009)). Thus, “the current state of merger law in Pennsylvania makes
clear there is no merger if each offense requires proof of an element the
other does not.” Quintua, 56 A.3d at 401.
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In Quintua, supra, a panel of this Court addressed the question of
whether burglary and criminal trespass merge for sentencing purposes. The
Court ruled these crimes do not merge, noting:
The plain language of the respective statutes demonstrates why
they do not merge. Criminal trespass contains an element of
knowledge—a person committing that offense must know he is
not privileged to enter the premises. Burglary has no such
knowledge requirement. Burglary does, however, require intent
to commit a crime within the premises, an element that criminal
trespass lacks. As each offense requires proof of an element the
other does not, the sentences should not merge.
Quintua, 56 A.3d at 402.
Appellant concedes the current state of Pennsylvania law is that
burglary and criminal trespass do not merge for sentencing purposes, but
urges this Court to reconsider the holding of Quintua. See Appellant’s
Brief, p. 26. This we may not do. Commonwealth v. Beck, 78 A.3d 656,
659 (Pa.Super.2013) (noting that one panel of the Superior Court is not
empowered to overrule another panel of the Superior Court). Accordingly,
Appellant’s sentencing merger claim fails.
For the preceding reasons, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2015
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