Com. v. Adams, D.

J-S37022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DAVID JAMAL ADAMS,

Appellant No. 1442 WDA 2015

Appeal from the Judgment of Sentence September 3, 2015
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000290-2015, CP-07-CR-0000315-
2015, CP-07-CR-0000316-2015, CP-07-CR-0001554-2009

BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 26, 2016

Appellant, David Jamal Adams, appeals from the judgments of

sentence imposed on September 3, 2015, following his conviction of several

drug-related crimes and the subsequent revocation of his probation.

We affirm.

While on probation from a 2009 conviction for one count of firearms

not to be carried without a license, 18 Pa.C.S. § 6106, Appellant was

charged with two counts each of possession with intent to deliver, 35 P.S.

§ 780-113(a)(30), and criminal use of communication facility, 18 Pa.C.S.

§ 7512(a); and one count each of criminal conspiracy, 18 Pa.C.S.

§ 903(a)(1), escape, 18 Pa.C.S. § 5121(a), and flight to avoid apprehension,

18 Pa.C.S. § 5126(a). We summarize the facts of the crimes as follows.
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On August 1, 2013, Sergeant Benjamin Jones, then in charge of the

Narcotics Division of the Altoona Police Department and a member of the

West 4 Drug Task Force,1 and Altoona Police Sergeant Christopher Moser

organized a controlled buy operation. N.T. (Day One), 6/22/15, at 42–43.

Sergeant Moser utilized a confidential informant (“C.I.”) in the operation.

Id. at 96; N.T. (Day Two), 6/23/15, at 27. The C.I. told police that she

knew of a “target”2 identified by his street names of “Dolla” and “H” and also

by his birth name, David Adams. N.T. (Day One), 6/22/15, at 44.

Prior to the buy, Altoona Police Corporal Nichole Douglas strip-

searched the C.I., and Sergeant Jones searched the C.I.’s car. N.T. (Day

Two), 6/23/15, at 34. At 9:00 p.m., the sergeants followed the C.I. to the

area of 14th Avenue and 16th Street in Altoona, near the No. 1 Fire Station,

to conduct the buy. N.T. (Day One), 6/22/15, at 44. The C.I. had

previously contacted Appellant by telephone to arrange the time and location

for the buy. Id. at 48. The police gave the C.I. $200 to buy an “eight-ball”3

of cocaine. Id. at 49. Once the police and the C.I. arrived at the location,

Sergeant Jones positioned himself on the roof of the fire station. Id. at 50–
____________________________________________

1
The Pre-Sentence Investigation (“PSI”) Report referenced the task force
as the West Drug Task Force. PSI Report, 8/20/15, at 2.
2
A “target” is a person identified by the C.I. as someone from whom the
C.I. can purchase narcotics. N.T. (Day One), 6/22/15, at 44.
3
An eight-ball, equal to about 3.5 grams or 1/8 of an ounce, of cocaine is
commonly referred to as a “ball” or a “B.” N.T. (Day Two), 6/23/15, at 59.

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51. Sergeant Jones observed Appellant driving a light-colored Dodge. N.T.

(Day One), 6/22/15, at 52. Sergeant Jones witnessed the motions of an

exchange between the C.I. and Appellant through the zoom feature of his

digital camera. Id.

On August 8, 2013, Altoona Police Patrolman Andrew Crist and

Sergeant Moser arranged for another controlled buy with the C.I. N.T. (Day

One), 6/22/15, at 105. The C.I. organized another meeting with Appellant

to purchase cocaine. Id. at 105. This time, Patrolman Crist and

Sergeant Moser drove behind the C.I. to the Monkey Wharf, the bar at which

Appellant elected to meet the C.I. Id. at 146. While on the road, Patrolman

Crist and Sergeant Moser noticed Appellant driving the light-colored Dodge

directly behind them. N.T. (Day Two), 6/23/15, at 51; N.T. (Day One),

6/22/15, at 147. An unidentified black male passenger was also in the car

with Appellant. N.T. (Day One), 6/22/15, at 147. Upon reaching the

Monkey Wharf, the passenger exited the vehicle and entered the C.I.’s car,

while Appellant remained in the Dodge. Id. at 148. The unidentified male

passenger remained in the C.I.’s vehicle for about one minute, then returned

to Appellant’s car, and they left the area. Id.

Before and after both the August 1, 2013, and the August 8, 2013

buys, Sergeant Jones searched the C.I.’s vehicle, and Corporal Douglas

strip-searched the C.I. N.T. (Day One), 6/22/15, at 103–104. The officers

did not find any contraband on the C.I.’s person or in her car during any of

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the searches. Id. After both buys, the C.I. gave police baggies containing a

white powdery substance, and police placed them into evidence envelopes.

Id. at 182–184. Keri Harkleroad, a forensic scientist in the drug

identification section of the Pennsylvania State Police Greensburg Regional

Laboratory, testified that her tests of the substances confirmed that the

white powder was, in fact, cocaine. N.T. (Day Two), 6/23/15, at 16–17.

On the evening of January 16, 2014, and into the early morning of

January 17, 2014, Altoona Police Deputy Benjamin Johnson and Altoona

Police Patrolman Christy Heck arranged an undercover operation to arrest

Appellant on outstanding felony drug-delivery warrants in connection with

the drug transactions on August 1, 2013, and August 8, 2013. N.T. (Day

Three), 6/24/15, at 3. In order to contact Appellant, Deputy Johnson

established a Facebook account for a fictitious woman named “Natalie” and

asked Patrolman Heck to pose as “Natalie.” Id. After multiple phone

conversations, Appellant asked “Natalie” for a ride, and they decided that

“Natalie” would meet Appellant at the intersection of Second Avenue and

Lloyd Street. Id. at 5. Patrolman Heck waited for Appellant in an unmarked

car with the doors locked. N.T. (Day Three), 6/24/15, at 5–6, 17.

Patrolman Heck did not see Appellant approach her vehicle due to the angle

Appellant traversed, and was surprised by Appellant when he attempted to

enter her vehicle. Id. at 10. Patrolman Heck exited her car, pointed her

service weapon at Appellant and yelled, “[P]olice; show me your hands,” to

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which Appellant responded by fleeing. Id. at 11, 20. Patrolman Heck

holstered her weapon and gave chase. Id. at 20. Police eventually

apprehended Appellant after a three-to-four-minute chase. Id. at 23.

We summarize the procedural history of the case as follows. After a

three-day jury trial, Appellant was found guilty of all charges on June 24,

2015. N.T. (Day Three), 6/24/15, at 108. On September 3, 2015, the trial

court sentenced Appellant to a term of imprisonment of sixty-eight months

to 136 months in a state correctional institution. The trial court also

conducted a Gagnon II probation revocation hearing on the same date.4 As

____________________________________________

4
In Commonwealth v. Heilman, 876 A.2d 1021 (Pa. Super. 2005), we
summarized the probation revocation process as follows:

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973), the United States Supreme Court held that
a defendant accused of violating the terms of his probation is
entitled to two hearings prior to formal revocation and
resentencing.

When a parolee or probationer is detained pending a
revocation hearing, due process requires a determination
at a pre-revocation hearing, a Gagnon I hearing, that
probable cause exists to believe that a violation has been
committed. Where a finding of probable cause is made, a
second, more comprehensive hearing, a Gagnon II
hearing, is required before a final revocation decision can
be made.

Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super.
2001). The Gagnon II hearing requires two inquiries: (1)
whether the probationer has in fact violated one of the
conditions of his probation, and, if so, (2) should the probationer
be recommitted to prison or should other steps be taken to
(Footnote Continued Next Page)

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a result of Appellant’s probation violations, the trial court imposed a

consecutive sentence of twenty-four months to forty-eight months of

imprisonment. This timely appeal followed. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

Appellant raises the following questions for our review:

I. Was there . . . insufficient evidence to sustain the jury’s
finding of guilt with respect to each count of which
[Appellant] was convicted?

a. Did the Commonwealth fail to establish by the
evidence that there was a conspiracy at Trial Court
Docket number 316 CR 2015?

b. Did the Commonwealth fail to establish that
[Appellant] had been placed in official detention at
Trial Court Docket number 290 CR 2015?

II. Did the trial court err in its discretionary aspects of
sentencing at 290 CR 2015, 315 CR 2015, 316 CR 2015
and 1554 CR 2009?

III. Was [Appellant] denied his right to due process under the
United States Constitution and Pennsylvania Constitution
at case numbers 315 CR 2015 and 316 CR 2015 because
of pre-arrest delay?

Appellant’s Brief at 5.

Appellant first asserts that the evidence was insufficient to sustain the

jury’s finding of guilt with respect to each conviction. Appellant’s Brief at 10.

_______________________
(Footnote Continued)

protect society and improve chances of rehabilitation. Id.
(quoting Gagnon, supra at 784).

Heilman, 876 A.2d at 1026–1027.

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In reviewing a sufficiency challenge, “we examine whether the evidence

admitted at trial, and all reasonable inferences drawn therefrom, viewed in

the light most favorable to the Commonwealth as verdict winner, support

the jury’s finding of all the elements of the offense beyond a reasonable

doubt.” Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Beasley, ___ A.3d ___, ___, 2016 PA

Super 92, at *4 (Pa. Super. filed April 28, 2016). The finder of fact is free to

believe all, part, or none of the evidence. Commonwealth v. Tejada, 107

A.3d 788, 793 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015).

As an appellate court, we may not re-weigh the evidence and substitute our

judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d

994, 1001 (Pa. Super. 2015).

Initially, we note that Appellant has waived any argument concerning

the sufficiency of the evidence regarding the charges for possession with

intent to deliver, criminal use of communication facility, and flight to avoid

apprehension. To preserve a claim that the evidence was insufficient,

Appellant must articulate the specific elements of the crime that he alleges

the evidence does not support. See Commonwealth v. Garland, 63 A.3d

339, 344 (Pa. Super. 2013) (finding waiver where the appellant not only

failed to specify the elements of a particular crime, but did not even mention

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the specific convictions that he was challenging as insufficient). See also

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (finding

claim waived for failure to specify either in Rule 1925(b) statement or in

argument portion of appellate brief which elements of crimes were not

proven beyond a reasonable doubt). Appellant’s generic statement that

“[t]here was insufficient evidence to sustain the jury’s finding of guilt with

respect to each count of which [he] was convicted,” does not specify which

elements of which crimes he challenges as being insufficiently proven.5

Appellant’s Brief at 10. Consequently, Appellant’s broad, generic claim

challenging the sufficiency of the evidence is waived. Garland, 63 A.3d at

244; Gibbs, 981 A.2d at 281. Appellant did, however, in subsections (a)

and (b) of his argument, specify certain elements for the charges of

conspiracy and escape that he alleges were insufficiently proven. Appellant’s

Brief at 16–17. Thus, we address those issues.

Appellant was convicted of conspiracy, which provides, in pertinent

part, as follows:

(a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:

(1) agrees with such other person or persons that
they or one or more of them will engage in
____________________________________________

5
The Pa.R.A.P. 1925(b) statement was similarly, indeed additionally,
vague.

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conduct which constitutes such crime or an
attempt or solicitation to commit such crime[.]

18 Pa.C.S. § 903(a)(1). An agreement to work harmoniously toward a

criminal purpose is the essence of a conspiracy. Commonwealth v.

Savage, 566 A.2d 272, 276 (Pa. Super. 1989). “[A] conviction for

conspiracy requires proof of the existence of a shared criminal intent. . . .

[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.”

Commonwealth v. McCall, 911 A.2d 992, 996–997 (Pa. Super. 2006)

(quoting Commonwealth v. Johnson, 719 A.2d 778, 784–785 (Pa. Super.

1998) (en banc)). Appellant has preserved a challenge only to the

agreement element. Appellant’s Brief at 16. An agreement may be inferred

from circumstances such as the relationship between the parties,

participation in the crime, and the conduct of the parties surrounding the

criminal incident. Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.

Super. 2011).

Appellant contends that his situation is congruous to the one in

Commonwealth v. Smythe, 369 A.2d 300 (Pa. Super. 1976). Appellant’s

Brief at 16. In Smythe, this Court vacated a police officer’s conspiracy

conviction because “the evidence failed to show any understanding or

agreement.” Smythe, 369 A.2d at 302. The evidence in Smythe

established that the officer, the two named co-defendants, and the two

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unidentified officers beat the appellee, but the testimony established only

the act, not the agreement. Id.

In the instant case, the testimony at trial established that during the

controlled buy on August 8, 2013, Appellant was driving a light-colored

Dodge with an unidentified male passenger to meet the C.I. at an agreed-

upon location. N.T. (Day One), 6/22/15, at 106, 147. Prior to this meeting,

the C.I. sent Appellant a text message asking, “[C]an you do the same

thing[?]” meaning the same arrangement as the August 1 buy. N.T. (Day

Two), 6/23/15, at 58. Appellant responded, “I’ll give you a ‘B’ for that.” Id.

Once they reached the location of the buy, the unidentified male passenger

left Appellant’s vehicle and entered the C.I.’s car. N.T. (Day One), 6/22/15,

at 148. Appellant waited in the Dodge for the unidentified passenger to exit

the C.I.’s car, and they left the scene together. Id. The C.I. testified that

she gave the unidentified male $200 for a bag of cocaine. Id. at 107–108.

The C.I. gave the cocaine she received from the unidentified male to

Sergeant Moser. N.T. (Day One), 6/22/15, at 109. Corporal Douglas strip-

searched the C.I, and Patrolman Crist searched her vehicle before departure

and immediately upon return from the buy, leading to the logical conclusion

that the cocaine was obtained from the unidentified male. Id. at 47. After

the buy, Appellant called the C.I. to ask if she was “working” with the police.

N.T. (Day Two), 6/23/15, at 108. The evidence of record compels the

conclusion that jurors could find that Appellant and the unidentified male

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conspired together to distribute controlled substances. Thus, Appellant’s

sufficiency challenge to the conspiracy conviction lacks merit.

Appellant also was convicted of escape under 18 Pa.C.S. § 5121(a),

which provides, in pertinent part, as follows:

(a) Escape.--A person commits an offense if he unlawfully
removes himself from official detention or fails to return to
official detention following temporary leave granted for a
specific purpose or limited period.

18 Pa.C.S. § 5121(a). Official detention is defined as:

[A]rrest, detention in any facility for custody of persons under
charge or conviction of crime or alleged or found to be
delinquent, detention for extradition or deportation, or any other
detention for law enforcement purposes; but the phrase does not
include supervision of probation or parole, or constraint
incidental to release on bail.

18 Pa.C.S. § 5121(e).

Appellant has preserved a challenge to whether he was in “official

detention.” Appellant’s Brief at 17. Because Appellant was not in police

custody or detained in a facility, the relevant question posed is whether the

facts of this case fall under “any other detention for law enforcement

purposes.” Commonwealth v. Santana, 959 A.2d 450, 452 (Pa. Super.

2008). This phrase has previously been interpreted to mean a seizure in

which “the police have restrained the liberty of a person by show of

authority or physical force.” Commonwealth v. Stewart, 648 A.2d 797,

798 (Pa. Super. 1994). The determination of whether or not a seizure has

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occurred is based on the totality of the circumstances and “whether a

reasonable person would have believed he or she was free to leave.” Id.

Appellant argues that the facts of this case are similar to those in

Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007). In that

case, an officer in a marked car initiated a traffic stop, and the appellant

refused to stop his vehicle. Woody, 939 A.2d at 361. After turning off his

headlights and speeding up, Appellant eventually stopped his vehicle,

abandoned his car, and fled on foot. Id. He was apprehended by the

officer. Id. This Court vacated the appellant’s conviction of escape, stating

that the appellant never was detained. Rather, we opined that he merely

ignored the officer’s instructions to stop and get on the ground. Id. at 363.

The instant case, instead, is factually similar to Santana and

Stewart. In Santana, police officers were in pursuit of the appellant, who

was wanted on a state parole violation. Santana, 959 A.2d at 451. After

pursuit, the appellant eventually was apprehended by an officer. Id. This

Court determined that because the officer wore a bulletproof vest that said

“POLICE” in gold letters on the front, wore his service belt, displayed his

police badge, and had an outstanding warrant for the appellant, there was

sufficient evidence to conclude that the appellant was in official detention.

Therefore, we upheld the escape conviction. Id. at 453; see also

Commonwealth v. Colon, 719 A.2d 1099, 1101 (Pa. Super. 1998) (“It is

the warrant which extends the power of the state over the [appellant],

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beyond the mere assertion he is under arrest, and completes the required

element of official detention necessary to constitute the crime of escape.”).

In Stewart, police were called to a domestic disturbance involving the

appellant. Stewart, 648 A.2d at 797. An officer, in uniform and driving a

marked police car, arrived at the scene. Id. The officer was suspicious that

the appellant was armed, so he drew his gun and ordered the appellant to

put his hands on the dashboard. Id. Instead, the appellant drove away and

eventually was apprehended by the officer after a twenty-minute chase. Id.

The appellant challenged the sufficiency of the evidence supporting the fact

that he was in official detention. Id. at 798. This Court determined that

under the circumstances, the officer “exhibited a show of authority,” and a

reasonable person would not believe that he was free to leave when a

uniformed police officer points a gun and orders him to stop. Id.; see also

Commonwealth v. Jackson, 630 A.2d 1231, 1236 (Pa. Super. 1993) (“Not

all interactions between the police and citizens involve seizure of persons.

Only when the police have restrained the liberty of a person by show of

authority or physical force may we conclude that a seizure has occurred.”).

Here, the testimony established that Patrolman Heck, under the alias

of “Natalie,” organized a meeting with Appellant. N.T. (Day Three),

6/24/15, at 3–4. When deciding on a location to meet, Appellant changed

the location multiple times due to his trepidation to venture too far due to

“police activity.” Id. Patrolman Heck appeared at the location designated

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by Appellant and had support officers, whom she planned to radio for backup

when she saw Appellant approach her car, stationed around the area of

Second Avenue and Lloyd Street. Id. at 9. Officer Heck was surprised by

Appellant when he approached from a nonvisible angle. Id. at 9–10. As

Appellant tried to open the locked car door, Patrolman Heck, dressed in her

police uniform and armed with her service belt, exited the automobile, ran to

the back of the vehicle, and pulled her service weapon. Id. at 11. She

pointed her gun at Appellant and yelled, “[P]olice; show me your hands,”

whereupon Appellant turned to face her, hesitated by jumping from foot to

foot, and eventually fled. Id. at 11, 18–20. After chasing Appellant,

Patrolman Heck found him hiding under a child’s slide, but Appellant ran off

again when Officer Heck shined her flashlight on him, announced herself as

police, and once again ordered him to stop. Id. at 22–23.

After Appellant was apprehended, testimony established that Appellant

made unsolicited comments to Patrolman Heck while in the back of the

police car. Appellant told Patrolman Heck that “this was the first time a

female ever got one over on [me].” N.T. (Day Three), 6/24/15, at 25. The

record also reflects that Appellant was displaying signs of amusement while

he was making this statement to Patrolman Heck. Id.

Under these facts, the jury concluded that a reasonable person in

Appellant’s position would not believe he was free to leave. Clearly,

Patrolman Heck, who identified herself as a police officer and who was

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dressed in full uniform with her gun drawn, was displaying her authority in

order to detain Appellant. Police also were there to arrest Appellant under

outstanding warrants which “extends the power of the state . . . beyond the

mere assertion that [Appellant] was under arrest.” Colon, 719 A.2d at

1101. There was sufficient evidence presented to support the conviction for

escape.

Next, we address Appellant’s contention that the trial court did not

consider mitigating factors and abused its discretion in sentencing Appellant

at CR 0290-2015, CR 0315-2015, CR 0316-2015, and CR 1554-2009.6

Appellant appeals from the sentence following probation revocation as well

as the sentences imposed for the new crimes. Specifically, he asserts that

the trial court failed to consider mitigating factors and assails the discretion

of the court in imposing the sentences consecutively. A discretionary

challenge is not subject to our review as a matter of right. “A challenge to

the discretionary aspects of a sentence must be considered a petition for

permission to appeal[.]” Commonwealth v. Treadway, 104 A.3d 597,

599 (Pa. Super. 2014); see also Commonwealth v. Archer, 722 A.2d

203, 211 (Pa. Super. 1998) (“[A]ny misapplication of the Sentencing

____________________________________________

6
The trial court and Appellant used different variations for the formatting of
the trial court docket numbers. We refer to them as written above, which is
consistent with the trial court’s designation on the complaints.

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Guidelines constitutes a challenge to the discretionary aspects of

sentence.”).

To effectuate this Court’s jurisdiction when challenging the

discretionary aspects of a sentence, Appellant must satisfy a four-part test

by (1) preserving the issue in the court below, (2) filing a timely notice of

appeal, (3) including a Pa.R.A.P. 2119(f) statement in his appellate brief,

and (4) raising a substantial question for our review. Commonwealth v.

Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (quoting Tejada, 107 A.3d

at 797).

Applying the four-part analysis to the instant case, we find that

Appellant (1) preserved the issue; (2) timely filed his notice of appeal on

September 26, 2015; and (3) complied with Pa.R.A.P. 2119(f) by including

in his brief a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of his sentence. Appellant’s

Brief at 20–23. Acknowledging that “the determination of what constitutes a

substantial question must be evaluated on a case-by-case basis,”

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015), we

note that this Court has held that an excessiveness claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question. See, e.g., Commonwealth v. Raven, 97 A.3d 1244,

1253 (Pa. Super. 2014) (In excessiveness claim, substantial question raised

when the appellant sufficiently articulates the manner in which the sentence

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violates either a specific provision of the Sentencing Code or a particular

fundamental norm underlying the sentencing process.). Therefore, we

proceed to address the merits of Appellant’s claim.

Appellant argues that the sentencing court abused its discretion by

failing to consider mitigating factors and by imposing his new sentence

consecutive to his prior sentence, thus rendering the sentence “manifestly

excessive.” Appellant’s Brief at 22–23. In support of his claim, Appellant

relies on factors reported in his PSI Report. Appellant’s Brief at 22.

Our standard of review for challenges to the discretionary aspects of

sentencing is as follows:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. 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.

Johnson, 125 A.3d at 826 (quoting Commonwealth v. DiSalvo, 70 A.3d

900, 903 (Pa. Super. 2013)).

Appellant does not argue that the sentencing court misapplied the

guidelines or sentenced him outside of the guidelines. Indeed, the sentence

imposed was in the standard range. Trial Court Opinion, 11/13/15, at 5.

We also recognize that trial courts generally have the discretion to impose

sentences consecutively. Commonwealth v. Reyes-Rodriguez, 111 A.3d

775, 784 (Pa. Super. 2015) (en banc), appeal denied, 123 A.3d 331 (Pa.

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2015). However, Appellant asserts that his sentence was excessive because

the sentencing court failed to consider certain mitigating factors, such as his

age; the fact that there were no violent crimes charged; and that Appellant

cooperated with and displayed respect for the court throughout the jury trial.

Appellant’s Brief at 22.

We note that “[w]here, as here, the trial court has the benefit of a pre-

sentence report, we presume that the court was aware of relevant

information regarding the defendant’s character and weighed those

considerations along with any mitigating factors.” Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014). Also, in its Rule 1925(a)

opinion, the trial court specifically stated:

We also considered [Appellant’s] prior criminal history as
outlined in the pre-sentence investigation report as well as the
other information presented in the pre-sentence investigation.
The information presented in the pre-sentence investigation
report included what the [c]ourt believed were aggravating and
mitigating circumstances but the [c]ourt ultimately felt that it
was appropriate to impose sentences that were within the
standard range of the state sentencing guidelines. . . . We also
believe it was appropriate because [Appellant] had previously
served a sentence in the State Correctional Institution of a little
over two and a half years. The [c]ourt is troubled by the fact
that [Appellant] did not redeem or rehabilitate himself despite
the lengthy period of prior incarceration in the State Correctional
Institution. This prior sentence not only failed to rehabilitate
[Appellant] but failed to deter him from committing the serious
crimes involved in this case.

Trial Court Opinion, 11/13/15, at 5. It is clear from the record that the

sentencing court did not ignore or misapply the law, nor is there record

evidence that the court “exercised its judgment for reasons of partiality,

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prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.”

DiSalvo, 70 A.3d at 903. The record also does not reflect reason to

conclude that the sentencing court misapplied any of the guidelines. See

Raven, 97 A.3d at 1254. Accordingly, the trial court did not abuse its

discretion in sentencing Appellant.

Finally, we consider Appellant’s claim that his right to due process

under the 14th Amendment of the United States Constitution and Article I

Section 9 of the Pennsylvania Constitution was denied due to a pre-arrest

delay. Appellant’s Brief at 23. A defendant’s due-process right against pre-

arrest delay is limited. Commonwealth v. Simpson, 66 A.3d 253, 283

(Pa. 2013). Our Supreme Court has held that in order to prevail on a due-

process claim based on pre-arrest delay,

the defendant must first show that the delay caused him actual
prejudice, that is, substantially impaired his or her ability to
defend against the charges. The court must then examine all of
the circumstances to determine the validity of the
Commonwealth’s reasons for the delay. Only in situations where
the evidence shows that the delay was the product of
intentional, bad faith, or reckless conduct by the prosecution,
however, will we find a violation of due process. Negligence in
the conduct of a criminal investigation, without more, will not be
sufficient to prevail on a due process claim based on pre-arrest
delay.

Commonwealth v. Scher, 803 A.2d 1204, 1221 (Pa. 2002) (footnote

omitted). Appellant must be able to show that “the passing of time caused

actual prejudice and that the prosecution lacked sufficient and proper

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reasons for postponing the prosecution.” Commonwealth v. Snyder, 713

A.2d 596, 601 (Pa. 1998).

Here, the testimony does not establish any such prejudice for

postponing Appellant’s arrest. The crimes occurred on August 1, 2013, and

August 8, 2013, and the complaint was not filed until December 9, 2014,

which is a delay of one year, four months, and eight days. Trial Court

Opinion, 11/13/15, at 6. The testimony established that such delay was

common in cases involving narcotic sales and confidential informants. N.T.

(Day One), 6/22/15, at 61. Sergeant Moser also testified that because the

C.I. stopped cooperating and subsequently was arrested, the ensuing

investigations and arrests of the people involved also were delayed. Id.

The record supports the conclusion that Appellant has failed to show

actual prejudice. Moreover, the prosecution articulated sufficient reasons for

postponing prosecution. Thus, in light of the facts established in the record,

we conclude that Appellant’s due process rights were not violated due to a

pre-arrest delay.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/26/2016

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