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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID RYAN BATES, :
:
Appellant. : No. 458 WDA 2018
Appeal from the Judgment of Sentence, February 8, 2018,
in the Court of Common Pleas of Erie County,
Criminal Division at No(s): CP-25-CR-0003635-2016.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 11, 2019
David Ryan Bates appeals from his judgment of sentence imposed after
the trial court convicted him of possession with intent to deliver, possession
of a controlled substance, and possession of drug paraphernalia.1 For the
reasons below, we affirm.
The trial court summarized its factual findings as follows:
On February 12th, 2015, Detective Brian Fiorelli, who
investigates narcotics sales and purchases in the Millcreek
Police Department’s Special Investigations Unit, received a
telephone call from an unidentified male regarding the
purchase of heroin[. He] entered into a deal to purchase
heroin at the McDonald’s restaurant located at 909
Peninsula Drive, Erie, Pennsylvania. Detective Fiorelli
arrived at the McDonald’s restaurant around 6:00 p.m. and
called the telephone number that had previously called him
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1 35 Pa.C.S.A. §§ 780-113(a)(30), (16), and (32), respectively.
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and an unidentified male “instructed Detective Fiorelli to go
to the bathroom of McDonald’s.”
As Detective Fiorelli proceeded to the men’s bathroom,
he was alerted via text message from other Millcreek
Detectives, who were conducting surveillance outside of this
McDonald’s restaurant, to the arrival of a blue Kia Sorento
in this McDonald’s restaurant’s parking lot. As Detective
Fiorelli continued to the men’s bathroom, he observed
[Bates] enter the McDonald’s restaurant and walk into the
men’s bathroom. After Detective Fiorelli followed [Bates]
into the men’s bathroom, [Bates] approached Detective
Fiorelli at the bathroom counter and spat . . . onto the
counter a knotted plastic baggy containing a “chunky brown
substance.” Detective Fiorelli then placed one hundred
dollars on the bathroom countertop, and [Bates] retrieved
the money and exited the bathroom. [Bates] then exited
this McDonald’s restaurant, entered the Kia Sorento,
departed from this McDonald’s restaurant’s parking lot, and
proceeded south on Peninsula Drive.
Detectives Green and Hardner, the other Millcreek
Detectives conducting surveillance, contacted Patrolman
Benjamin Bastow of the Millcreek Police Department, who
was patrolling nearby in a marked Millcreek Police vehicle.
Patrolman Bastow, who was already approximately a block
away from the Kia Sorento, was requested to effectuate a
stop of the Kia Sorento to obtain information on the
occupants for the benefit of the Detectives conducting
surveillance. Patrolman Bastow observed the Kia Sorento
depart from this McDonald’s parking lot, proceed down
Peninsula Drive, and pull into a County Fair gas station.
Patrolman Bastow then followed the Kia Sorento into the
County Fair gas station parking lot and conducted a mere
encounter with the occupants of the vehicle to identify said
individuals. Patrolman Ben Bastow identified the individuals
inside of the Kia Sorento and sent out their names over the
radio, who included David Ryan Bates, Eijon Shaleel Blue,
and Davon Wall. Within approximately ten minutes of
meeting with [Bates] in this McDonald’s restaurant
bathroom, Detective Fiorelli identified positively [Bates] as
the individual who sold the chunky brown substance to
Detective Fiorelli after Detective Fiorelli reviewed a printout
of [Bates’] Identification card photograph produced from the
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PennDot System. The chunky brown substance was
ultimately sent to the Pennsylvania State Police Erie
Regional Lab for analysis, and the lab results indicated
positively that the chunky brown substance was heroin with
a weight of .36 grams.
Trial Court Opinion, 5/18/18, at 1-3 (citations omitted).
Bates was charged with the above drug-related offenses, and Bates
ultimately waived his right to a jury trial. On December 7, 2017, a bench trial
commenced, and the Commonwealth presented testimony from Detective
Brian Fiorelli and Patrolman Benjamin Bastow, as well as Forensic Scientist
David Eddinger of the Pennsylvania’s State Police Crime Lab. On December
28, Blue and Wall testified on behalf of Bates, who also testified on his own
behalf. The Commonwealth also called Patrolman Barlow in rebuttal.
The trial court convicted Bates on all charges and imposed an aggregate
sentence of two to five years’ incarceration. Bates filed post-sentence motions
which the trial court denied. Bates timely appealed. Both Bates and the trial
court complied with Pa.R.A.P. 1925.
Bates raises the following issues on appeal:
1. Was there sufficient evidence to sustain each of Bates’
convictions, because the court’s findings were based on
mere conjecture and speculation?
2. Did the trial court err by denying Bates’ post-sentence
request for relief on weight of the evidence grounds?
3. Did the trial court err by imposing a manifestly extreme
and clearly unreasonable sentence which was not
individualized as required by law?
See Bates’ Brief at 5.
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Bates’ first issue challenges the sufficiency of the evidence supporting
his convictions. Our standard of review is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable a fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilty may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of the
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted).
Further, “[w]hile a criminal conviction may rest upon wholly
circumstantial evidence, it may not be based upon mere surmise or
conjecture.” Commonwealth v. Stores, 463 A.2d 1108, 1112 (Pa. Super.
1983) (citations omitted). Here, Bates asserts “there are multiple
discrepancies in particular relative to [Detective] Fiorelli’s testimony which
should have cause the [trial court] to find his testimony not credible.” Bates’
Brief at 7. In support of this claim, Bates asserts the detective’s testimony at
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the preliminary hearing “differed greatly” from his trial testimony. Id. Bates
further argues that, although Detective Fiorelli testified that Bates spat out
the plastic bag of the drugs that were recovered from him, the contraband
“was never submitted for DNA analysis to determine if [his] DNA was found
thereupon.” Id. Bates also contends that the trial court “simply ignored” the
version of the incident testified to by his two defense witnesses, which was
corroborated by his own testimony. Id. at 8. We disagree.
The trial court rejected Bates’ sufficiency challenge:
[Bates’] argument that the Commonwealth presented
“no evidence of a physical nature, such as DNA testing of
the package that the heroin was obtained in . . . nor were
there any fingerprints of [Bates] found on said package . .
.” is simply without merit. As mentioned above, the
Commonwealth presented sufficient evidence in this case
identifying [Bates] as the individual who sold the subject
heroin to Detective Fiorelli. In particular, Detective Fiorelli
retrieved a printout containing a photograph of [Bates] from
the PennDOT System, which was date-stamped as 6:20
p.m. on February 12th, 2015, approximately ten minutes
from the time Detective Fiorelli stated he encountered
[Bates] inside the McDonald’s restaurant bathroom at or
about 6:10 p.m. The Commonwealth additionally requested
and, with no objection from [Bates,] this trial court admitted
said printout as evidence. Said printout is included in the
formal case record. Thus, this trial court was entitled to rely
on the Commonwealth’s evidence in making the factual
determination that Detective Fiorelli positively identified
[Bates] as the individual who sold heroin to Detective Fiorelli
approximately ten minutes after encountering [Bates]. As
this trial court has the exclusive responsibility of affording
weight to the Commonwealth’s evidence, this trial court
concludes [Bates] was the individual who sold heroin to
Detective Fiorelli.
Trial Court Opinion, 5/18/18, at 8.
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Our review of the record supports the trial court’s conclusions. In finding
the evidence sufficient, the trial court, as sole fact-finder, found Detective
Fiorelli’s testimony credible. We cannot disturb this determination. Hansley,
supra.
Moreover, the trial court did not “simply ignore” the testimony from
Bates and his witnesses but rather discredited it as untrue. Bates’ argument
truly goes to the weight and credibility of the evidence presented rather than
its sufficiency. See Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super.
2011) (concluding that the appellant attacks the weight, rather than the
sufficiency of the evidence, when his argument is direct entirely to the
credibility of the Commonwealth’s chief witness). Thus, we dismiss his
sufficiency challenge to the Commonwealth’s evidence as meritless.
Bates also raises a weight claim as his second issue on appeal. In ruling
on a claim challenging evidentiary weight, our standard of review is more
attenuated than on a sufficiency challenge, as we may adjudge only the trial
court’s exercise of discretion in refusing the defendant’s challenge:
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court,
our review is limited. It is important to understand we do
not reach the underlying question of whether the verdict
was, in fact, against the weight of the evidence. We do not
decide how we would have ruled on the motion and then
simply replace our own judgment for that of the trial court.
Instead, this Court determines whether the trial court
abused its discretion in reaching whatever decision it made
on the motion, whether or not that decision is the one we
might have made in the first instance.
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Commonwealth v. Stays, 70 A.3d 1256, 1267-68 (Pa. Super. 2013)
(citations omitted).
Mindful of our deferential standard of review, we find no basis for relief.
The trial court rejected Bates’ claim because, once again, the credibility of the
witnesses was exclusively for the fact finder, which, in this case, was the trial
court itself. Thus, the merit of Bates’ claim that “the Commonwealth’s
evidence was riddled with inconsistencies on critical factual questions” was a
determination to be made by the trial court. Bates’ Brief at 11. In addressing
Bates’ weight issue, the trial court found that Bates’ convictions were “not so
contrary to the evidence as to shock one’s sense of justice.” Trial Court
Opinion, 5/18/18, at 9. Because we discern no abuse of discretion, Bates’
second issue fails.
In his remaining claim, Bates 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 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) (citations
omitted).
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Bates filed a timely notice of appeal, preserved his claim in a post-
sentence motion, and included a concise Pa.R.A.P. 2119(f) statement for
allowance of appeal in his brief. 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.
Bates’ Rule 2119(f) statement argues his sentence was manifestly
excessive and clearly unreasonable, because it was not individualized to meet
his needs. The trial court found that Bates did not raise a substantial question,
because he essentially challenged the weight the trial court assigned certain
mitigating factors, and a substantial question regarding the trial court’s choice
of consecutive sentencing is found in only “extreme circumstances” not
present here. See Trial Court Opinion, 5/18/18, at 10-11.
Our standard of review is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing court, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion, which in this
context, is not shown merely to be 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.
Commonwealth v. Shull, 148 A.3d 820 (Pa. Super. 2016) (citation omitted).
This court has previously held that a substantial question exists where
an appellant alleged that the trial court failed to consider the defendant’s
individualized needs when fashioning a sentence. Commonwealth v.
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Serrano, 150 A.3d 470, 473 (Pa. Super. 2016). Under Serrano, we find that
Bates has raised a substantial question and grant him a review of his sentence
on the merits.
However, Bates is not entitled to relief. As the trial court further
explained:
this trial court properly imposed standard range sentences
that were appropriate in light of the individualized facts of
the underlying incident while also considering aggravating
and mitigating circumstances. Specifically, at the time of
sentencing, this trial court considered the thorough pre-
sentence investigation report, the Pennsylvania Guidelines
on Sentencing, the Pennsylvania Sentencing Code, [Bates’]
age, the seriousness of the offenses, the facts and nature
and circumstances of the offenses, the protection of society,
[Bates’] rehabilitative needs, the sincerity of his remorse,
and that the undersigned judge was also the presiding trial
judge. Based on the foregoing, [Bates] has no basis to
challenge his standard range sentence.
Trial Court Opinion, 5/18/18, at 11.
Our review of the sentencing transcript supports the trial court’s
conclusion that the record refutes Bates’ discretionary challenge to his
sentence. This Court has held that “where the sentencing court imposed a
standard-range sentence with the benefit of a pre-sentence report, we will not
consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d 293,
298 (Pa. Super. 2011). Under such circumstances, “we can assume the
sentencing court ‘was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.’” Id. (quoting Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).
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Thus, the trial court did not abuse its discretion in sentencing Bates.
In sum, Bates’ challenges to the sufficiency and weight of the evidence
supporting his convictions are without merit. Further, the trial court did not
abuse its discretion in fashioning Bates’ sentence. We therefore affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2019
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