J-S79025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD FRIEDLAND
Appellant No. 133 EDA 2016
Appeal from the Judgment of Sentence November 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015361-2010
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED JANUARY 12, 2017
Edward Friedland appeals from the November 20, 2015 judgment of
sentence entered in the Philadelphia County Court of Common Pleas
following his conviction for possession with intent to manufacture or deliver
(“PWID”).1 We affirm.
The trial court set forth the following facts:
On May 13, 2010, Officers Walter Bartle and Patrick
Banning set up plain-clothes narcotics surveillance in an
unmarked vehicle on the 800 block of East Russell Street
in Philadelphia, which is a high-drug area. Officer Bartle,
who has over 18 years of experience as a police officer and
has conducted thousands of narcotics arrests, conducted
the surveillance while Officer Banning acted in a back-up
capacity to ensure their safety. At approximately 1:30
p.m., Officer Bartle observed [Friedland] standing on the
north side of the block, near H Street. Five minutes later,
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1
35 P.S. § 780-113(a)(30).
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[Friedland] walked westbound into an open lot, reached
into a cinder-block type wall, and removed a clear plastic
bag with blue objects. [Friedland] walked from the back of
the open lot, past the officers’ vehicle, and went to the
porch of a property across the street. He then placed the
plastic bags underneath a rug on the porch.
At approximately 1:45 p.m., a Hispanic male, later
identified as John Torres, walked onto the block where
[Friedland] was standing and exchanged words. Officer
Bartle observed Mr. Torres hand [Friedland] United States
Currency. [Friedland] took the money, jogged southbound
past the officers’ vehicle to the rug on the porch, and
retrieved items from underneath the rug. [Friedland]
handed Mr. Torres a packet with blue items. Officer Bartle
gave a description of Mr. Torres to his backup officers, and
Officer Reilly subsequently stopped and arrested him on
the 3500 block of Rand Street. [Friedland] and the District
Attorney stipulated that the blue Ziploc packet that was
recovered on Mr. Torres tested positive for crack cocaine
and weighed 50 milligrams.
At approximately 1:50 p.m., a white female, later
identified as Jacquelynn Granberg, approached [Friedland]
and engaged in a brief conversation. Officer Bartle
observed Ms. Granberg hand [Friedland] paper money.
[Friedland] again jogged past the officers’ vehicle to the
porch with the rug, retrieved a baggie from under the rug,
and handed Ms. Granberg the bag. Officer Bartle gave out
a description of Ms. Granberg to his backup officers and
Officer Bates later stopped and arrested her on the 900
block of Tioga Street. [Friedland] and the District Attorney
stipulated that the six blue Ziploc packets of narcotics
recovered from Ms. Granberg tested positive for crack
cocaine and weighed 432 milligrams.
At approximately 1:55 p.m., a black male, later identified
as Anthony Blanchard, walked up to [Friedland] and
engaged on a brief conversation. After Mr. Blanchard
handed [Friedland] money, [Friedland] again went to the
same porch and retrieved a baggie from under the same
rug. He then handed the items to Mr. Blanchard. At that
point, Officer Bartle gave out a description to the backup
officers and Officer Brooks stopped and arrested Mr.
Blanchard at a Chinese corner store near Tioga and H
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Street. [Friedland] and the District Attorney stipulated
that the blue packet recovered from Mr. Blanchard tested
positive for crack cocaine and weighed 45 milligrams.
Officer Jones later stopped and apprehended [Friedland]
and recovered $280.00 on his person. In addition, Officer
Bartle and Officer Santiago recovered 17 packets of crack
cocaine, weighing 612 milligrams, from the rug on the
porch. Further, Officer Bartle and Officer Reilly recovered
56 packets of crack cocaine that weighed 4.157 grams
from the cinder-block wall. Officer Bartle testified that all
of the packets of crack cocaine that were recovered
matched in size, shape, and color.
1925(a) Opinion, 3/16/16, at 2-4 (“1925(a) Op.”) (internal citations
omitted). On September 5, 2015, a jury found Friedland guilty of PWID.2
On November 20, 2015, the trial court sentenced Friedland to 4 to 8 years’
incarceration, followed by 2 years’ probation. Friedland filed a pro se motion
for reconsideration of sentence on November 25, 2015, which the trial court
denied. On December 29, 2015, Friedland timely filed a notice of appeal.
Friedland raises the following issues on appeal:
1. Whether the sentence of four (4) to eight (8) years,
followed by two (2) years probation, imposed by the
trial court in the case sub judice, was unduly
excessive and unreasonable, where 1) the sentence was
more than one hundred percent higher than the
maximum applicable guideline range of twenty-two (22)
to forty-four (44) months, 2) the court’s sentence was
imposed consecutively to Appellant’s prior sentence for
second degree murder and robbery, 3) the court
disregarded the nature and circumstances of Appellant’s
culpable offenses, neither of which involved violence, 4)
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2
Although a prior jury trial commenced on November 13, 2013, the
trial court declared a mistrial because of a mistaken representation
concerning a photograph. N.T, 11/13/13, at 102-04.
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the court failed to consider Appellant’s rehabilitative
needs as well as other mitigating factors, and 5) the
court did not give reasons for sentencing Appellant
outside of the sentencing guidelines[.]
2. Whether the trial court abused its discretion in granting
the Commonwealth’s motion in limine, precluding
Appellant from questioning Philadelphia Police Officer
Patrick Banning, who played a prominent role in the
criminal investigation and arrest in the case sub
judice, about his participation in numerous fraudulent
investigations and arrests supervised by Philadelphia
Police Officer Christopher Hulmes, who admitted under
oath to committing perjury and swearing a false search
warrant affidavit of probable cause, which prejudiced
Appellant’s right to a fair trial[.]
3. Whether the trial court abused its discretion in granting
the Commonwealth’s motion in limine precluding
Appellant from questioning Officer Bartle about the
Commonwealth’s misuse of a photograph, which the
Commonwealth falsely alleged was Appellant’s stash
location for narcotics, during the course of its
investigation and prosecution of Appellant, which
prejudiced Appellant’s right to a fair trial[.]
Friedland’s Br. at 5-6.
I. Discretionary Aspects of Sentence
Friedland first challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we address such a challenge, we first
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
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statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));
see also Allen, 24 A.3d at 1064.
Friedland filed a timely notice of appeal, preserved his claim in a
timely post-sentence motion, and included in his brief a concise statement of
reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f). We must now determine whether he has
raised a substantial question that the sentence is inappropriate under the
sentencing code and, if so, review the merits.
We evaluate whether a particular sentencing issue raises a substantial
question on a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa.Super. 2011). A substantial question exists where a
defendant raises a “plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268
(Pa.Super. 2013) (citation and internal quotation marks omitted). A mere
averment that a sentence is outside the sentencing guidelines, or a bald
claim of excessiveness due to the consecutive nature of a sentence, does not
raise a substantial question. Commonwealth v. Ousley, 573 A.2d 599,
602 (Pa.Super. 1990); Dodge, 77 A.3d at 1270. However, a defendant’s
challenge to the imposition of consecutive sentences as unduly excessive,
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coupled with a claim that the trial court failed to consider defendant’s
rehabilitative needs, raises a substantial question. Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015). Furthermore, a claim that a
sentence is excessive, in conjunction with an assertion that trial court failed
to consider mitigating factors, also raises a substantial question. Dodge, 77
A.3d at 1272. An assertion that the trial court failed to sufficiently state its
reasons for imposing a sentence outside the sentencing guidelines also
raises a substantial question. Commonwealth v. Rodda, 723 A.2d 212,
214 (Pa.Super. 1999).
Friedland first contends that his sentence was manifestly excessive
because it exceeded the maximum guideline range by more than 100
percent and did not take into account his rehabilitative needs or other
mitigating factors. This, Friedland argues, violated the fundamental norms
of sentencing, thus raising a substantial question. Second, he contends that
his claim raises a substantial question because the trial court did not provide
a contemporaneous statement of reasons when imposing its sentence
pursuant to 42 Pa.C.S. § 9721(b).3 Third, he contends that he has raised a
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3
42 Pa.C.S. § 9721(b) provides in relevant part:
In every case where the court imposes a sentence or
resentence outside the guidelines adopted by the
Pennsylvania Commission on Sentencing under sections
2154 (relating to adoption of guidelines for sentencing),
2154.1 (relating to adoption of guidelines for county
(Footnote Continued Next Page)
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substantial question because the trial court’s sentence was consecutive to
Friedland’s sentence in a separate case where he was convicted of second-
degree murder and first-degree robbery. He maintains that this consecutive
sentencing violated the fundamental norms of sentencing because the crime
in the instant case did not involve violence. Here, Friedland has advanced
more than a mere assertion that his claim is outside the sentencing guideline
and more than a bald claim of excessiveness due to the consecutive nature
of his sentence. Therefore, Friedland has raised a substantial question for
our review. See Caldwell, 117 A.3d at 770; Dodge, 77 A.3d at 1272;
Rodda, 723 A.2d at 214.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “An
abuse of discretion requires the trial court to have acted with manifest
_______________________
(Footnote Continued)
intermediate punishment), 2154.2 (relating to adoption of
guidelines for State intermediate punishment), 2154.3
(relating to adoption of guidelines for fines), 2154.4
(relating to adoption of guidelines for resentencing) and
2154.5 (relating to adoption of guidelines for parole) and
made effective under section 2155, the court shall provide
a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines to the
commission, as established under section 2153(a)(14)
(relating to powers and duties). Failure to comply shall be
grounds for vacating the sentence or resentence and
resentencing the defendant.
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unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. “A sentencing court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Id. at 1283.
Friedland’s first argument, that the trial court failed to consider
rehabilitative or other mitigating factors when fashioning a sentence outside
the maximum guidelines, is without merit. In fashioning Friedland’s
sentence, the court considered the protection of the public, Friedland’s
rehabilitative needs, and the gravity of the offense. 1925(a) Op. at 6. At
the outset of the sentencing hearing, both the Assistant District Attorney
(“ADA”) and Friedland4 stated that Friedland’s offense gravity score was
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4
On January 15, 2015, Friedland was allowed to proceed pro se. See
Docket at 16; see Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
The transcript of the Grazier hearing is not in the certified record, but the
following exchange occurred on the first day of trial:
THE COURT: . . . Now, again, you understand that you’re
going to serve as your attorney. We went through the
whole colloquy. You signed the waiver yesterday. You’ve
been colloquied not only by me but a prior judge as well
about your desire to represent yourself, correct?
FRIEDLAND: Yes.
(Footnote Continued Next Page)
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seven and his prior record score was one, which would put the guidelines at
9 to 16 months. Thus, the trial court was aware of the sentencing guidelines
in fashioning Friedland’s sentence. Furthermore, the trial court stated on
the record that it had reviewed all of the reports5 ordered for the sentencing
hearing and listened to Friedland and the ADA. Id. at 11. The trial court
stated:
According to the Pre-Sentence Investigation Report,
[Friedland] is currently incarcerated at SCI Graterford,
serving a life sentence for second degree murder and
conspiracy to robbery. While he was incarcerated from
March 23, 2012 to September 24, 2015, [Friedland] had
one inmate separation, four medical alerts, and four
disciplinary infractions. Some infractions include fighting
and violating regulations. [Friedland] had eight arrests,
five convictions, and four commitments. His convictions
include theft, drug dealing, indecent assault, robbery, and
murder. Based upon his criminal history, the Pre-Sentence
Supervisor concluded that [Friedland] is at a significant
risk for incurring in future offenses. [Friedland]’s Mental
Health Report further reflects the need to sentence [him]
outside the guidelines. In addition to his laundry list of
criminal convictions, [Friedland] admitted to a bad
temperament. He recalled setting fire in the hallway at
age 6 and killing a couple of cats by throwing them. The
psychologist concluded in the Mental Health Report that if
_______________________
(Footnote Continued)
N.T., 9/2/15, at 6-7. This exchange, coupled with the fact that no party
disputes that a Grazier hearing occurred, leads us to conclude that the
colloquy took place.
5
“Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988).
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[Friedland] is returned to the community, he should be
closely supervised. Taking into consideration [Friedland]’s
extensive criminal history, it follows that [he] poses a
threat to the public safety and is a danger to society.
The trial court exercised the utmost care in fashioning
[Friedland]’s sentence and did not manifest abuse of
discretion. The court considered all mitigating factors
while reading the Pre-Sentence Investigation Report,
Mental Health Report, and Police Report and considered
the arguments from both sides.
1925(a) Op. at 6-7. Additionally, in considering Friedland’s rehabilitative
needs, the trial court stated that it “ordered [Friedland] to submit to random
drug screens to ensure the [he] would not relapse into substance abuse, as
reflected in his Pre-Sentence Investigation report.” Id. at 7. We conclude
that the trial court considered Friedland’s rehabilitative needs and mitigating
factors in sentencing him outside the guidelines and, therefore, did not
abuse its discretion.
Friedland’s second argument, that the trial court did not provide a
contemporaneous statement of reasons when imposing its sentence, is also
meritless. This Court has explained the requirements of section 9721(b) as
follows:
The statute requires a trial judge who intends to sentence
a defendant outside the guidelines to demonstrate on the
record, as a proper starting point, his awareness of the
sentencing guidelines. Having done so, the sentencing
court may deviate from the guidelines, if necessary, to
fashion a sentence which takes into account the protection
of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the
impact on the life of the victim and the community, so long
as he also states of record “the factual basis and specific
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reasons which compelled [him] to deviate from the
guideline range.”
Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa.Super. 1995). We
have also explained that the purpose of a statement of reasons is to have a
“record of the [trial] court’s rationale” and “as evidence that [it] considered
the guidelines.” Id. As stated above, the trial court was aware that it was
sentencing outside of these guidelines.6 Following the ADA’s reasons for
requesting an increased sentence and Friedland’s request to sentence within
the guidelines, the trial court stated on the record that it agreed with the
ADA’s reasoning. N.T., 11/20/16, at 11. Finally, the trial court stated that it
was imposing its sentence because it considered Friedland a danger to
society and such a sentence was for the protection of the public. Id. at 12.
Friedland’s third argument, that the trial court abused its discretion in
sentencing him consecutively to a separate case where he was convicted of
second-degree murder and first-degree robbery, is also without merit.
“[T]he sentencing court [has] discretion to impose its sentence concurrently
or consecutively to other sentences being imposed at the same time or to
sentences already imposed.” Commonwealth v. Prisk, 13 A.3d 526, 533
(Pa.Super 2011). The trial court found that “the two sentences [were]
based on two separate crimes, with two separate fact [patterns].” 1925(a)
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6
See supra n.5.
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Op. at 7. At sentencing, the trial court agreed with the ADA’s reasoning that
just because Friedland had committed a more serious offense for which he
had already been sentenced, he should not get the benefit of getting a
concurrent sentence and that “[i]t would be like giving somebody a discount
because you become even more . . . of an egregious criminal.” N.T.,
11/20/16, at 9; see Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa.Super. 1995) (stating appellant should not be entitled to “a volume
discount for his crimes by having all sentences run concurrently”). The trial
court also relied on Friedland’s criminal history, the reports prepared for the
sentencing hearing, and the risk of Friedland’s recidivism. 1925(a) Op. at 6-
7. We find no abuse of discretion.
II. Admissibility of Evidence
Next, Friedland contends that the trial court abused its discretion in
granting the Commonwealth’s two motions in limine: (1) preventing
Friedland from questioning Officer Banning about his participation in
fraudulent investigations and (2) preventing Friedland from questioning
Officer Bartle about a photograph that was misused in the prior trial, which
led to a mistrial.
Our standard of review concerning a challenge to the admissibility of
evidence is as follows:
The admissibility of evidence is a matter for the discretion
of the trial court and a ruling thereon will be reversed on
appeal only upon a showing that the trial court committed
an abuse of discretion. An abuse of discretion may not be
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found merely because an appellate court might have
reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support so as to be clearly
erroneous.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (internal
citations and quotation marks omitted). Evidence is admissible where it is
“relevan[t] and probative . . . . Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue more or
less probable or supports a reasonable inference or presumption regarding a
material fact.” Commonwealth v. Reese, 31 A.3d 708, 716 (Pa.Super.
2011).
This Court has stated the following regarding motions in limine:
A motion in limine is used before trial to obtain a ruling on
the admissibility of evidence. It gives the trial judge the
opportunity to weigh potentially prejudicial and harmful
evidence before the trial occurs, thus preventing the
evidence from ever reaching the jury. A motion in limine
differs from a suppression motion in that a suppression
motion is designed to preclude evidence that was obtained
in violation of a defendant's constitutional rights, while a
motion in limine precludes evidence that was
constitutionally obtained but which is prejudicial to the
moving party.
Id. at 715 (quoting Commonwealth v. King, 689 A.2d 918, 921 (Pa.Super.
1997)).
Friedland maintains that the trial court abused its discretion in
precluding his questioning of Officer Banning regarding fraudulent
investigations by his former partner, Officer Hulmes. We disagree. The trial
court found that Officer Banning’s role on the night of the investigation was
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minimal and that his main duty was “for backup and protection.” 1925(a)
Op. at 9. As the trial court stated: “Officer Banning did not prepare a PARS
Report, take detailed notes of the incident, nor recover any items.” Id. The
trial court further said that “questioning [Officer Banning] about his
participation in fraudulent investigations and arrests under the supervision of
Officer Hulmes is irrelevant to and beyond the scope of this case.” Id.
Thus, the trial court properly limited any questioning of Officer Banning to
the day Friedland was arrested. Id.
Next, Friedland argues that the trial court abused its discretion in
precluding him from questioning Officer Bartle regarding the misuse of a
photograph in a prior trial,7 which had led to a mistrial. The trial court
permitted Friedland to use the photograph for authentication purposes, but
precluded questioning regarding communications Officer Bartle had
concerning the photograph. 1925(a) Op. at 10. We agree with the trial
court that “[Friedland] was in no way prejudiced by the trial court’s decision
to preclude [him] from questioning Officer Bartle about his communications
concerning the misuse of [the] photograph.” Id. We conclude that the trial
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7
In the prior trial, the Commonwealth discovered a mistake regarding
the identification of the photograph. N.T., 11/13/13, at 86. Although not
intentional, the Commonwealth failed to identify the mistake for defense
counsel. Id. at 86-87. During opening arguments, defense counsel
incorrectly used the photograph under the mistaken belief that it
represented Friedland’s stash location. Id. at 86. Because of that
confusion, the trial court declared a mistrial. Id. at 102-03.
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court did not abuse its discretion in granting the Commonwealth’s motion in
limine.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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