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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSIE J. CRAWLEY :
:
Appellant : No. 350 WDA 2018
Appeal from the Order Entered February 13, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012842-2015
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 06, 2018
Jessie J. Crawley (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of corrupt organizations, acquisition or
obtaining of possession of a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge (acquisition of a controlled substance through
fraud), and related offenses.1 Appellant challenges the alleged denial of his
motion for a mistrial and the discretionary aspects of his sentence. Upon
review, we affirm.
Kevin Andrews led a state-wide organization that fabricated
prescriptions to obtain Oxycodone, and employed people — often women who
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1 18 Pa.C.S.A. § 911(b)(3), (4); 35 P.S. § 780-113(a)(12).
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were addicted to Oxycodone or heroin — to fill the prescriptions at pharmacies.
Thereafter, Andrews illegally sold the Oxycodone pills.2 Following an
investigation, the Pennsylvania Attorney General’s Office (AG Office)
determined that at least 500 fraudulent prescriptions were filled. N.T. Trial,
Vol. II, 2/21/17, at 34.
The Commonwealth alleged that Appellant, who was Andrews’ cousin,
was a local leader in the organization, and that he prepared fraudulent
Oxycodone prescriptions, instructed individuals on how to fill them at
pharmacies, transported individuals to the pharmacies, paid them with cash
and Oxycodone pills, and subsequently ingested some of the pills himself or
sold the pills. The Commonwealth averred that Appellant was responsible for
obtaining more than 15,000 pills over the course of a year. N.T. Sentencing,
7/6/17, at 11. An investigative grand jury recommended that charges be filed
against Appellant, as well as his associates Tracy Markin, Erica Leggett, and
Marsha Johnston. Appellant was thus charged with three counts of acquisition
of a controlled substance through fraud, two counts of corrupt organizations,
and one count each of conspiracy, forgery, identity theft, dealing in proceeds
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2 In January of 2015, 24 people associated with the organization were
arrested, and Andrews was arrested in April of 2015 and charged in Blair
County. See N.T. Trial Vol. II, 2/21/17, at 35. His paramour at that time,
Kristen Berry, testified at trial in this case that Andrews was sentenced to 33
to 66 years’ imprisonment. Id. at 62.
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of unlawful activities, criminal use of a communication facility, and possession
with intent to deliver a controlled substance.3
The case proceeded to a jury trial on February 17, 2017. The
Commonwealth presented ten witnesses: Berry (Andrews’ former paramour);
Markin and Leggett; AG Office Narcotics Agent Courtney Van Orden, who
investigated this case; Kayla Lantzy, another paramour of Appellant, who also
participated in the enterprise; Lantzy’s aunt, who was a nurse and procured,
at Appellant’s request, two doctors’ “DEA numbers” that were subsequently
used for fraudulent prescriptions; three women who filled fraudulent
prescriptions at Appellant’s instruction and were subsequently paid by him;
and a “driver” who worked for Andrews and observed Appellant create the
prescriptions.4
Pertinent to Appellant’s claims on appeal, the following evidence was
adduced at trial: Agent Van Orden testified that Appellant was arrested in
September of 2015 at the home of another girlfriend, which “was the
residence he had on his home plan for parole.” N.T. Trial, Vol. II, 2/21/17, at
133. Appellant did not object to this reference that he was on parole. See
id. Subsequently at trial, Lantzy testified about her romantic relationship with
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3 18 Pa.C.S.A. §§ 903(a)(1), 4101(a)(3), 4120(a), 5111(a)(1), 7512(a); 35
P.S. 780-113(a)(30).
4 All of these witnesses – except the AG’s narcotics agent – were also charged
for their roles in the organization.
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Appellant, their roles in the enterprise, and her own arrest and sentence. On
direct examination, Lantzy testified:
[Lantzy:] . . . I was arrested after [Appellant] was in custody
on related charges. . . .
[Commonwealth]: So am I right in saying that after
[Appellant’s] arrest in this case, you got arrested for doing the
same thing?
A. After [Appellant] was arrested, I was arrested for filling
fraudulent prescriptions.
[Questions and responses about how Lantzy acquired the
prescriptions.]
Q. It doesn’t sound like you know the persons [giving you the
prescriptions]?
A. I really don’t. I only knew . . . two men that were related
back to [Appellant] besides when he first went to jail—
N.T. Trial, Vol. II, 2/21/17, at 83-84 (emphases added).
At this juncture, Appellant moved for a mistrial on the basis that Lantzy
improperly referred to his incarceration. Id. at 84. The trial court denied
relief, crediting the Commonwealth’s response that it had instructed its
witnesses to not say that anyone was in custody, and concluding that “the
question did not call for that answer,” that Lantzy volunteered the information,
and that another witness had already testified to Appellant’s “having been on
parole for other charges.” Id. at 85-86. Appellant then agreed to a curative
instruction, and the court instructed the jury to disregard Lantzy’s answer
regarding Appellant’s “location at the time[.]” Id. at 86-87.
Additionally, Casey Murphy testified that she filled prescriptions at
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Appellant and Lantzy’s behest, they both paid her with cash, Appellant created
the prescriptions, and Appellant sold the Oxycodone pills that she procured.
N.T. Trial, Vol. II, 2/21/17, at 106-110. During one attempt to fill a
prescription, Murphy was arrested. Id. at 112. On cross-examination,
Appellant asked Murphy how she came to cooperate with the AG’s Office. Id.
at 117. In response, the following exchange occurred:
[Murphy:] When I showed up for the hearing after I [was] shot,
that is when I got involved.
[Appellant’s counsel:] And they came to you and said what? They
wanted to cooperate?
A. No, I was going to be charged with these prescriptions.
Id. (emphasis added). On redirect examination, this exchange occurred:
[Commonwealth: Y]ou used the words after you were shot?
[Murphy:] Yes.
Q. Without going into detail, was it related to your involvement in
fraudulent prescriptions?
A. Yes, it was.
Id. at 119.
Appellant requested a sidebar conference and, without articulating any
request for a mistrial or other specific relief, stated that Issa Battles had been
charged with shooting Murphy, but the inference in the Commonwealth’s
question was that Appellant shot her. Id. at 120. The court suggested to
counsel that he could clarify on re-cross examination of Murphy, and counsel
agreed. Id. Appellant then asked Murphy, “Isn’t it a fact that Issa Battles
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was charged with shooting you?” and Murphy answered, “Yes.” Id. at 122.
Appellant did not testify or present any evidence. The jury found him
guilty of all counts. On July 6, 2017, the trial court conducted sentencing.
The court imposed, inter alia, 7 years and 11 months to 15 years and 10
months’ imprisonment for one of the acquisition of a controlled substance
through fraud counts, directed that some sentences run consecutively and
some concurrently, and imposed no further sentence for 6 of his 11 counts.
Appellant’s aggregate sentence was 20 to 40 years in prison. He filed a timely
post-sentence motion claiming, inter alia, that the sentence for acquisition of
a controlled substance through fraud was illegal because it exceeded the
statutory maximum of 15 years.5 The trial court agreed, and on February 13,
2018, resentenced him on that count to an aggravated-range sentence of 7½
to 15 years’ imprisonment. The court did not otherwise disturb the sentencing
scheme and the new aggregate term of incarceration was 19 years and 7
months to 39 years and 2 months. Appellant timely appealed and both
Appellant and the trial court have complied with Pa.R.A.P. 1925(b).
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5 Appellant requested and was granted an additional 30 days to file an
amended motion once he received the trial and sentencing transcripts.
Subsequently, however, Appellant’s counsel was permitted to withdraw and
current counsel was appointed to represent him. Counsel then filed a motion
to reinstate Appellant’s post-sentence rights nunc pro tunc, which the trial
court granted. Appellant filed an amended post-sentence motion on
November 9, 2017.
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Appellant raises three issues for our review:
1. Did [the] trial court err in sentencing Appellant to 235-470
months for no violent crime and no aggravating factors placed on
the record, thereby constituting a substantial sentencing question
since that sentence is so manifestly excessive as to constitute too
severe a punishment?
2. Is Appellant’s sentence of 90-180 months on Count 4, a
potential statutory maximum sentence, clearly excessive?
3. Should a mistrial have been declared when a witness stated
she was shot and the inference was that . . . Appellant was
somehow responsible for it, combined with another witness
stating that Appellant was incarcerated on two instances?
Appellant’s Brief at 2.
We address Appellant’s first two issues together. In assailing his
sentence, Appellant first avers that his aggregate sentence, 19 years and 7
months to 39 years and 2 months, was excessive and unreasonable. Appellant
maintains that his actions were not violent and “he did not force anyone to
participate in the crimes,” the sentence is effectively a life sentence, “[t]here
was no mention of aggravating factors which allowed for the consecutive
sentences,” and there was nothing in this case that was different from “other
cases where criminals concoct schemes to fraudulently obtain prescription
pills.” Id. at 6-7. Appellant also alleges that “the lengthy sentence does not
address [his] rehabilitative needs and effectively just punishes him
excessively.” Id. at 7. Appellant’s second sentencing claim is that his 7½ to
15 year-sentence for acquisition of a controlled substance through fraud is
excessive because the maximum term is equal to the statutory maximum and
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because it was imposed consecutively to other sentences.
This Court has stated:
An appellant challenging the discretionary aspects of his sentence
must invoke this Court's jurisdiction by satisfying a four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015).
“The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis.” Further:
A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge's
actions were either: (1) inconsistent with a specific provision
of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.
“An appellant making an excessiveness claim raises a substantial
question when he sufficiently articulates the manner in which the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.”
Id. (citations omitted). With respect to the imposition of consecutive
sentences:
a defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
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Id. at 769. A “challenge to the imposition of . . . consecutive sentences as
unduly excessive, together with [a] claim that the court failed to consider [a
defendant’s] rehabilitative needs . . . presents a substantial question.” Id. at
770. Further, this Court has stated that an allegation that the court failed to
state adequate reasons on the record for imposing an aggravated-range
sentence raises a substantial question for our review. Commonwealth v.
Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008), appeal denied, 13 A.3d 474
(Pa. 2010).
Here, Appellant has filed a timely notice of appeal, preserved his
sentencing issues in a timely post-sentence motion, and included a Pa.R.A.P.
2119(f) statement in his brief. See Caldwell, 117 A.3d at 768; Appellant’s
Brief at 4. Additionally, Appellant’s discrete claims raise substantial questions.
See id. at 769-770; Coulverson, 34 A.3d at 143. Accordingly, we consider
the merits of his argument. This Court has stated:
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.
Caldwell, 117 A.3d at 770. When a pre-sentence investigation report has
been prepared, we presume the trial court considered it. Coulverson, 34
A.3d at 146.
At the initial sentencing hearing, the trial court stated that it considered
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the pre-sentence report, the sentencing guidelines, and the parties’
sentencing arguments. N.T. Sentencing, 7/6/17, at 16. It specifically found
that Appellant was “a poor candidate for community supervision and
rehabilitation as demonstrated by his parole problems,” and that his conduct
spanned a year “and resulted in the illegal acquisition of 15,000 or so pills and
the use of multiple other people in the scheme to obtain those pills.” Id. at
16-17; see also Trial Court Opinion, 4/18/18, at 5 (citing same). As stated
above, the trial court imposed no further penalty on 6 of Appellant’s 11
convictions, and directed that some of his sentences run concurrently.
Despite the testimony of ten Commonwealth witnesses at trial,
Appellant’s brief provides no discussion of any the facts supporting his
convictions, and his sentencing argument on appeal fails to acknowledge the
trial court’s reasoning. In the absence of any response to the trial court’s
reasoning concerning Appellant’s conduct, the court’s consideration of the pre-
sentence investigation report, and Appellant’s prior unsuccessful rehabilitation
through parole, we conclude that no relief is due on Appellant’s claim that the
trial court abused its sentencing discretion. See Caldwell, 117 A.3d at 770.
In Appellant’s third and final issue, he avers that he should have been
granted a new trial based on Murphy’s testimony that she was shot. Although
Appellant acknowledges that the Commonwealth clarified that Appellant did
not shoot Murphy, Appellant alleges that “the [c]ourt did not address the
inference the jury could have had . . . that Appellant’s associate or affiliate
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had her shot as a result of . . . Murphy’s involvement in the case.” Appellant’s
Brief at 8. Appellant also contends that Murphy’s statement was unduly
prejudicial because “the jury could have inferred that this is a dangerous
organization that has people shot for speaking out or for another reason.” Id.
Appellant also challenges Lantzy’s two references that Appellant was
incarcerated because, when combined with Murphy’s statements, “the jury
was grossly prejudiced.” Id. at 10. In support, Appellant maintains that
evidence of a defendant’s other crimes may not be presented to prove his
criminal character or tendency to commit criminal acts.
We note the relevant standard of review:
A motion for a mistrial is within the discretion of the trial court. A
mistrial . . . is required only when an incident is of such a nature
that its unavoidable effect is to deprive the appellant of a fair and
impartial trial. It is within the trial court’s discretion to determine
whether a defendant was prejudiced by the incident that is the
basis of a motion for a mistrial. On appeal, our standard of review
is whether the trial court abused that discretion.
Caldwell, 117 A.3d at 774 (citation omitted). Further, “[a] trial court may
remove taint through curative instructions. ‘Courts must consider all
surrounding circumstances before finding that curative instructions were
insufficient and the extreme remedy of a mistrial is required.’” Id. (citation
omitted).
As stated above, with respect to Lantzy’s reference to Appellant’s arrest
and incarceration, the trial court denied Appellant’s motion for a mistrial on
the grounds that a prior witness — Agent Van Orden — had already testified,
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without objection, to Appellant being on parole, the Commonwealth had
instructed all of its witnesses to refrain from stating that anyone was
incarcerated, and the Commonwealth’s question did not seek a response that
Appellant was incarcerated. N.T. Trial, Vol. II, at 85-86. Additionally, as
Appellant acknowledges, the trial court issued a curative instruction to the
jury to disregard Lantzy’s reference to Appellant’s “location at that time.” Id.
at 87. In light of these circumstances, the court’s curative instruction was
sufficient. Caldwell, 117 A.3d at 774.
With respect to Murphy’s statement that she was shot, the trial court
properly noted that Appellant did not make any contemporaneous motion for
a mistrial. See Trial Court Opinion, 4/18/18, at 5; N.T. Trial, Vol. II, at 120.
See also Commonwealth’s Brief at 7 (arguing that Appellant’s claim was
waived for failure to move for mistrial). Accordingly, any claim that the trial
court erred in not granting a mistrial is waived. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”). In any event, we would agree with the trial court that it resolved
the issue by permitting defense counsel to elicit a response from Murphy that
another individual was charged with the shooting. See Trial Court Opinion,
4/18/18, at 5 n.2.
In sum, we find no merit to any of Appellant’s claims, and therefore
affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2018
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