Com. v. Brock, J.

J-S77040-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN BROCK, :
:
Appellant : No. 1111 EDA 2017

Appeal from the Judgment of Sentence March 3, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0708871-2003

BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 21, 2019

John Brock (Appellant) appeals from the judgment of sentence of 15½

to 31 years of incarceration plus 5 years of probation following his jury

conviction of aggravated assault, carrying a firearm without a license,

carrying a firearm on public streets in Philadelphia, possession of an

instrument of crime, and person not to possess a firearm, and his guilty plea

to possession with intent to deliver (PWID). We affirm.

We glean the following factual and procedural history from the record.

At approximately 5:45 a.m. on June 2, 2003, police responded to a call for a

shooting at the home of Valerie Copper, in Philadelphia. Upon arrival,

officers encountered Etienne Johnson, who had been shot in the chest.

Witnesses at the house described the shooter as a black male, 5’9”, and

*Retired Senior Judge assigned to the Superior Court.
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wearing a black and orange jacket. This description was broadcast over the

police radio.

While driving towards the scene within minutes of the initial call,

Officer Timothy Hart observed Appellant a few blocks from the shooting,

walking in the opposite direction. Appellant, a black male, was wearing an

orange and black hooded sweatshirt underneath a black jacket. Officer Hart

made a U-turn and exited his vehicle to approach Appellant. As he did so,

Appellant immediately fled on foot. Officers Hart and Michael Shankin

pursued Appellant. Officer Shankin ultimately apprehended Appellant and

brought him back to his police vehicle to be transported to the hospital for

injuries sustained during his flight. Prior to Appellant’s being transported,

Copper was brought to the area and she identified Appellant as the shooter.

A search at the hospital revealed crack cocaine within Appellant’s clothing.

Based on the foregoing, Appellant was charged on June 3, 2003, with

the shooting and PWID, and was arrested on June 16, 2003. Later ballistics

testing matched a recovered projectile from Copper’s home to the revolver

that Appellant dropped as he ran from police.

The case was first listed for trial on December 15, 2003, but was
continued numerous times until March 8, 2005. On that date,
[Appellant], who was on house arrest pursuant to Pa.R.Crim.P.
600(E), failed to appear for court. A bench warrant for his arrest
was issued on March 18, 2005[.]

… [Eventually in 2006, after Appellant was incarcerated
elsewhere on unrelated charges], the Commonwealth arranged

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for [Appellant’s] return to Philadelphia to stand trial on the June
3, 2003 charges.

On May 24, 2007, [Appellant’s] attorney orally argued that he
was entitled to the dismissal of all charges, with prejudice,
pursuant to Pa.R.Crim.P. 600[.] … [Following hearings on May
24, 2007, and January 18, 2008,] the trial court granted
[Appellant’s] motion and dismissed the charges against him.

Commonwealth v. Brock, 61 A.3d 1015, 1016 (Pa. 2013) (footnotes

omitted).

The Commonwealth appealed, and this Court affirmed the order

dismissing Appellant’s case. Commonwealth v. Brock, 4 A.3d 678 (Pa.

Super. 2010) (unpublished memorandum). However, after granting the

Commonwealth’s petition for allowance of appeal, our Supreme Court

reversed the trial court’s order and remanded. Brock, 61 A.3d at 1019-20.

The Court concluded that Rule 600 requires a defendant to file a written

motion to dismiss, which Appellant had failed to do, and therefore he was

not entitled to relief. The Court also determined Appellant had waived his

Rule 600 issue because he failed to appear in court on the day listed for

trial.1 Id. at 1022.

1
Subsequently, our Supreme Court clarified that this waiver rule “applies
only where a defendant fails to appear for a trial that complied with the
requirements of Rule 600.” Commonwealth v. Barbour, 189 A.3d 944,
960-61 (Pa. 2018). In concluding that its earlier decision in Brock complied
with this narrowed construction, the Court noted that

[a] review of the Superior Court’s memorandum in Brock, []
reveals that [Appellant’s] original trial date was indeed timely
(Footnote Continued Next Page)

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Following remand, on May 19, 2014, Appellant filed a motion to

suppress the revolver and other physical evidence, and on October 30,

2014, he filed a motion to suppress Copper’s identification. Following

several continuances, a hearing was held on November 22, 2016. At the

hearing, the Commonwealth presented the testimony of Officer Hart and

Sergeant Daniel Gorman. Appellant did not call any witnesses, but

introduced into evidence the weather report for the morning of June 2,

2003. At the conclusion of the hearing, the trial court denied Appellant’s

motions. N.T., 11/22/2016, at 50-52.

Meanwhile, on January 26, 2015, Appellant filed a motion to bar

ballistics evidence because the revolver and ballistics evidence had been

destroyed by the Commonwealth prior to trial. In its response, the

Commonwealth asserted that the evidence was destroyed in error, but that

it was done in compliance with department policy. Commonwealth’s

Opposition to Defendant’s Motion to Bar Ballistics Evidence, 1/29/2015, at 3.

Following a hearing, the trial court denied Appellant’s motion because it

found that the police did not act in bad faith. N.T., 5/2/2015, at 59.
(Footnote Continued) _______________________

under Rule 600—a conclusion with which th[e Supreme] Court
took no issue. See [Brock, 4 A.3d 678 (unpublished
memorandum at 10)] (noting that, by the date of Brock’s
original trial, “252 days chargeable to the Commonwealth had
elapsed”).

Barbour, 189 A.3d at 958.

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A jury trial occurred from November 29, 2016 to December 2, 2016,

wherein the aforementioned facts were developed. Additionally, because

Copper died prior to Appellant’s trial, the trial court permitted the

introduction of Copper’s preliminary hearing testimony, which detailed the

events surrounding the shooting, as substantive evidence. See N.T.,

11/28/2016, at 41-42 (ruling on the Commonwealth’s unavailability motion);

N.T., 11/29/2016, at 61-72 (reading Copper’s redacted preliminary hearing

testimony into the record).

At the conclusion of the trial, the jury found Appellant guilty as

indicated above. Separately, Appellant pleaded guilty to PWID.2 On March

3, 2017, the trial court sentenced Appellant to an aggregate term of 15½ to

31 years of incarceration followed by 5 years of probation.

Appellant filed a post-sentence motion, which the trial court denied.

This timely-filed appeal followed.3 Appellant raises 11 issues for this Court’s

review, which we have rephrased and reordered for clarity and ease of

disposition. See Appellant’s Brief at 14, 32-33, 64-65, 70.

2 During Appellant’s trial, he indicated his desire to plead guilty to PWID.
See N.T., 11/29/2016, at 7. The record does not reflect any guilty plea
colloquies or the acceptance by the trial court of Appellant’s guilty plea. The
voluntariness of Appellant’s guilty plea to PWID is not before this Court.
Therefore, this deficiency in the record does not hinder our review of
Appellant’s claims.

3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.

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Waived Claims

We dispose of Appellant’s first eight claims together, as they are

waived for various reasons. Appellant’s first claim is that the trial court

erred in forcing Appellant to state before the jury that he was pleading guilty

to PWID. Appellant’s Brief at 14, 28. Specifically, it concerns the beginning

of his trial when the court crier asked, in front of the jury, how Appellant

wished to plead to each charge. Appellant responded “not guilty” to every

charge except PWID, to which he responded, “guilty.” N.T., 11/29/2016, at

7. Appellant argues on appeal that the trial court forced him to enter that

response in front of the jury. See Appellant’s Brief at 28. However, no

contemporaneous objection was made to the question. It is well-settled that

“failure to raise a contemporaneous objection to the evidence at

trial waives that claim on appeal.” Commonwealth v. Thoeun Tha, 64

A.3d 704, 713 (Pa. Super. 2013) (citations omitted). Moreover, Appellant

never moved to have the PWID charge severed for purposes of his jury trial.

Therefore, this issue is waived.

Appellant’s second claim is that the trial court erred in overruling

Appellant’s objection to the ballistics expert’s stated degree of scientific

certainty regarding the conclusions he drew in this case. Appellant’s Brief at

14. It is waived because he raises new theories on appeal unrelated to his

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cited objection at trial. See id. at 31-33;4 N.T., 11/30/2016, at 82. See

Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (citation

omitted) (“Also, an appellant may not raise a new theory for

an objection made at trial on his appeal.”).

Appellant’s third claim is that the trial court erred in allowing the

Commonwealth to read into the record the dates of Appellant’s trial listings.

Appellant’s Brief at 14. This claim similarly is waived because at trial

Appellant only objected to one of the dates being read into the record,

whereas on appeal Appellant alleges that the trial court erred in admitting

the complete list of trial dates into the record. Compare N.T., 12/1/2016,

at 79 (objecting to “only one” of the offered dates) with Appellant’s Brief at

54 (claiming that “[t]he trial court erred in allowing the prosecution to read

the dates of Appellant’s trial listings into the record.”). Because Appellant

did not object to the admission of the list of trial dates, he has failed to

preserve his claim for our review.

Appellant’s fourth and fifth claims are that the trial court erred in

denying Appellant’s motion to suppress Copper’s identification as unduly

4 Appellant also argues on appeal that Commonwealth v. Whitacre, 878
A.2d 96 (Pa. Super. 2005), which held that the exact methodology used
herein was generally accepted in the scientific community, should be
overruled based on two articles critiquing forensic science. Appellant’s Brief
at 33-34. This new argument is also waived for failing to raise it at trial, and
insofar as Appellant asks us to overrule a prior panel of this Court, we
cannot do that under the circumstances presented here. See
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).

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suggestive and that the trial court erred in granting the Commonwealth’s

motion in limine to limit cross-examination of the ballistics expert.

Appellant’s Brief at 14, 64-65. His fourth claim is waived for failing to

develop it in any meaningful way in his brief, and his fifth claim is waived

because he completely abandons it within his argument, instead focusing on

his sixth claim. Appellant’s Brief at 64-65, 71. See Commonwealth v.

Delvalle, 74 A.3d 1081, 1086–87 (Pa. Super. 2013) (some citations

omitted) (“Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure

provides that ‘[t]he argument shall ... have ... the particular point treated

therein, followed by such discussion and citation of authorities as are

deemed pertinent.’ Pa.R.A.P. 2119(a). Failure by the appellant to discuss

pertinent facts or cite legal authority will result in waiver.”).

Appellant’s sixth claim, that the trial court erred in not excluding the

ballistics expert’s report, is waived because Appellant failed to raise it in his

Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b)(2)(iv) (“[A]ny issue

not properly included in the [s]tatement timely filed and served pursuant to

subdivision (b) shall be deemed waived.”).

Appellant’s seventh claim, that the trial court erred in denying

Appellant’s motion to suppress the crack cocaine as fruit of the poisonous

tree, is waived by virtue of his guilty plea to PWID. See Commonwealth v.

Heaster, 171 A.3d 268, 271 (Pa. Super. 2017) (citation omitted) (“[U]pon

the entry of a guilty plea, a defendant waives all claims and defenses other

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than those sounding in the jurisdiction of the court, the validity of the plea,

and what has been termed the ‘legality’ of the sentence imposed.”).

Finally, Appellant’s eighth claim, that his constitutional right to a

speedy trial was violated, is waived because he failed to raise it before the

trial court. “In evaluating speedy trial issues, our standard of review is

whether the trial court abused its discretion, and our scope of review is

limited to the trial court’s findings and the evidence on the record, viewed in

the light most favorable to the prevailing party.” Commonwealth v.

Miskovitch, 64 A.3d 672, 677 (Pa. Super. 2013) (citation and quotation

marks omitted). Speedy trial analysis requires a two-step inquiry: “we first

consider whether the delay violated Pa.R.Crim.P. 600, and if not, we may

proceed to the four-part constitutional analysis set forth in Barker[ v.

Wingo, 407 U.S. 514 (1972)].” Commonwealth v. Colon, 87 A.3d 352,

357 (Pa. Super. 2014). However, “[w]here the appellant does not raise the

separate constitutional issue apart from the Rule 600 issue as a basis for the

motion to dismiss, there is no need for the Barker balancing test to be

examined.” Id. at 357 n.2 (citation omitted).

Appellant did not raise a constitutional claim as part of his oral Rule

600 motion. See Brock, 61 A.3d at 1022 n.7 (noting that Appellant had not

raised a claim regarding his constitutional right to a speedy trial). Following

remand, Appellant still did not move for the court to dismiss the charges

against him based on his constitutional right to a speedy trial. Instead,

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Appellant waited until he filed this appeal to assert such a claim. See

Pa.R.A.P. 1925(b) Statement, 7/15/2017, at ¶ 8 (“Appellant now challenges

the issue under his constitutional right to a speedy trial.”). Because

Appellant failed to raise this claim before the trial court, there is no trial

court discretion for us to review, and Appellant’s claim fails. See Colon, 87

A.3d at 357 n.2. Moreover, we note that the trial court had in fact granted

Appellant’s oral rule-based speedy trial motion. It was our Supreme Court

that reversed that decision. Insofar as Appellant’s claim is really asking this

Court to overrule our Supreme Court’s holding, that we cannot do.

We now turn to Appellant’s claims that were preserved properly.

Motion to Suppress Revolver

Appellant’s ninth claim alleges that the trial court erred in denying his

motion to suppress. Appellant’s Brief at 64. We review this claim mindful of

the following.

Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, “whose duty it is to determine if the suppression

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court properly applied the law to the facts.” Thus, the
conclusions of law of the courts below are subject to our plenary
review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted).

On appeal, Appellant argues that, pursuant to Commonwealth v.

Matos, 672 A.2d 769 (Pa. 1996), the trial court erred by failing to suppress

the revolver because Appellant was subjected to a seizure when the police

chased him without probable cause to arrest him or reasonable suspicion to

conduct a stop and frisk. Appellant’s Brief at 69-70.

In Matos, our Supreme Court concluded “that the pursuit of an

appellant by police officers amount[s] to a seizure.” In re D.M., 781 A.2d

1161, 1164 (Pa. 2001) (footnote and citation omitted). “Thus, pursuant

to Matos, any contraband discarded during the pursuit was abandoned by

coercion and the officer must demonstrate either probable cause to make

the seizure or reasonable suspicion to stop and frisk.” Commonwealth v.

Cook, 735 A.2d 673, 675 (Pa. 1999) (citation and quotation marks omitted).

An investigatory stop, which subjects a suspect to a stop
and a period of detention but does not involve such coercive
conditions as to constitute an arrest, requires a reasonable
suspicion that criminal activity is afoot. Reasonable suspicion
depends upon both the content of the information possessed by
the police and its degree of reliability. Thus, quantity and quality
of information are considered when assessing the totality of the
circumstances. If information has a low degree of reliability,
then more information is required to establish reasonable
suspicion.

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Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000) (citations

omitted).

At the hearing, the Commonwealth called Officer Hart and Sergeant

Gorman to testify regarding their interactions with Appellant. While driving

to the scene of the shooting mere minutes after the call for help, Officer Hart

looked for an individual matching the description of the shooter broadcast by

responding officers. When he was approximately three blocks from Copper’s

home, Officer Hart observed Appellant walking in the opposite direction.

N.T., 11/22/2016, at 7, 9-10, 15-16. Appellant matched the description of

the shooter: black male, 5’9”, and wearing a black and orange jacket.

Specifically, Appellant was wearing a black and orange hooded sweatshirt

underneath a black jacket. Id. at 10, 21, 23. Officer Hart did not see

anyone else in the immediate area as he approached the scene, much less

anyone else matching the description of the shooter. Id. at 22. Because

Appellant matched the description of the shooter and was in close

geographic and temporal proximity to, and walking away from, the scene,

Officer Hart decided to stop and talk to Appellant. Id. at 21.

Officer Hart made a U-turn, exited his vehicle, and asked Appellant to

stop, at which point Appellant immediately fled on foot. Id. at 11. Officer

Hart pursued Appellant in his vehicle and on foot. During the chase, Officer

Hart observed Appellant climb a fence, and as he jumped down on the other

side a revolver fell off Appellant’s person and landed on the ground. Id. at

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13, 15. Appellant continued to climb over a second fence, which contained

barbed wire and razor ribbons, to get to nearby train tracks. In climbing

that second fence, Appellant suffered a severe laceration to his face. Id. at

12-13, 17, 27, 32. Appellant was ultimately apprehended by another officer

and transported to the hospital, where Sergeant Gorman recovered three

large chunks of crack cocaine from Appellant’s clothing. Id. at 27-28.

In denying Appellant’s motion to suppress, the trial court concluded

that Officer Hart had reasonable suspicion to stop and investigate Appellant

based on the totality of the circumstances. Trial Court Opinion, 4/13/2018,

at 12; see also N.T., 11/22/2016, at 50-52. The totality of the

circumstances includes the following. While responding to a shooting within

minutes of the initial call, Officer Hart observed an individual who matched

the detailed description of the shooter three blocks from the scene and

walking in the opposite direction. Additionally, Officer Hart did not observe

anyone else in the area at that time. Based upon our review of the record,

we agree with the trial court that Officer Hart had reasonable suspicion to

stop Appellant and pursue him when he fled. Accordingly, the trial court did

not err in denying Appellant’s suppression motion.

Preliminary Hearing Testimony of Valerie Copper

Appellant next claims that the trial court erred in granting the

Commonwealth’s unavailability motion and permitting the Commonwealth to

introduce the preliminary hearing testimony of Copper because Appellant did

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not have a full and fair opportunity to cross-examine her at the preliminary

hearing.5 Appellant’s Brief at 19-21.

Insofar as Appellant’s constitutional challenge raises a question
of law, our standard of review over the trial court’s admission of
the contested testimony is de novo and our scope of review is
plenary.

Our Supreme Court has made clear that the admission at trial of
previously [recorded] testimony depends upon conformity with
applicable evidentiary rules and the defendant’s constitutional
right to confront witnesses against him.

Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.
“Whether prior testimony was given at trial or at any other
proceeding, where, as here, admission of that prior testimony is
being sought as substantive evidence against the accused, we
conclude that the standard to be applied is that of full and fair
opportunity to cross-examine.” Commonwealth v. Bazemore,
[] 614 A.2d 684, 687 ([Pa.] 1992) (emphasis in original).

5 Specifically, Copper testified at the preliminary hearing that during the
early morning hours of June 2, 2003, she had several friends at her house to
play cards. She heard a knock at the door, and when she went outside to
the front porch she observed her friend, Dorothy, with Appellant. Appellant
demanded a $5 refund because Dorothy, whom Appellant had hired as a
prostitute to perform oral sex, failed to make him ejaculate. Copper re-
entered her home to look for $5, and Appellant and Dorothy followed her
inside. Copper gave Appellant $5 and told him to leave. As Appellant left he
said, “Oh, I’ll be back.”

Shortly thereafter, at approximately 5:45 a.m., Appellant returned to
Copper’s residence, this time brandishing a revolver in his hand. Appellant
began asking the occupants of Copper’s residence about Dorothy, yelling
repeatedly, “Where the bitch at?” Copper listened from the kitchen as the
other occupants insisted that Dorothy was no longer there. Appellant
responded, “Well I want my money,” and shot at Etienne Johnson twice.
Copper saw Appellant run out the front door and she called 911. N.T.,
7/24/2003, at 6-18.

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The Commonwealth may not be deprived of its ability to present
inculpatory evidence at trial merely because the defendant,
despite having the opportunity to do so, did not cross-examine
the witness at the preliminary hearing stage as extensively as he
might have done at trial.

Commonwealth v. Mitchell, 152 A.3d 355, 358–59 (Pa. Super. 2016)

(some citations and quotation marks omitted).

There is no question that Copper was deceased and unavailable at the

time of Appellant’s trial. Thus, the only inquiry before us is whether

Appellant had a full and fair opportunity to cross-examine her at the

preliminary hearing. Appellant “does not allege that the Commonwealth

withheld any statements, criminal record history, or any other concerning

factors relevant under the case law.” Id. at 359. Rather, Appellant presents

two arguments to support his contention that he was deprived a full and fair

opportunity to cross-examine Copper.

A.

First, Appellant argues that every defendant’s ability to cross-examine

a witness at a preliminary hearing “is per se impeded by this Court’s holding

in Commonwealth v. Ricker, 120 A.3d 349, 357 (Pa. Super. 2015)[,] in

which this Court held that credibility is not an issue at the preliminary

hearing[,]” and Pa.R.Crim.P. 542(E), which states that hearsay “‘shall be

sufficient to establish any element of an offense.’” Appellant’s Brief at 24

(quoting Pa.R.Crim.P. 542(E)). Because credibility is an issue at trial but not

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at a preliminary hearing, Appellant posits “to allow such preliminary hearing

testimony in at trial violates the Confrontation Clause.” Id. at 25. However,

notwithstanding Appellant’s displeasure with the Ricker decision, under the

circumstances here we cannot overrule a prior panel of this Court. See

Pepe, 897 A.2d at 465. Thus, Appellant’s first argument fails.

B.

Second, Appellant argues that the preliminary hearing judge sustained

Commonwealth objections during cross examination and overruled

Appellant’s objection to a question asked by the judge, hindering his ability

to fully and fairly cross-examine Copper. Appellant’s Brief at 20-21. Our

review of the record indicates that there was one instance where Appellant

objected to an answer given to the judge’s question, and three instances

where the judge sustained the Commonwealth’s objections on cross

examination.

In the first instance, the judge asked Copper during her direct

examination how she knew that Appellant had fired the weapon, and she

responded that he was “the only who asked for the gun.” Appellant

objected, and the judge did not rule on the objection, but the

Commonwealth concluded its direct examination at that time. N.T.,

7/24/2003, at 13. The judge’s failure to rule on Appellant’s objection did not

prevent Appellant from attempting to clarify or discredit Copper’s statement

on cross examination. That Appellant chose not to pursue this line of

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questioning at all on cross examination does not translate to a deprivation of

Appellant’s right to a full and fair opportunity to cross-examine.

Second, after asking Copper whether she ran a speakeasy, drank that

night, really did “not [have] one sip of alcohol” that night, and whether

Johnson had been drinking that night, all of which were answered in the

negative, the Commonwealth objected to Appellant asking Copper whether

one of the other occupants had been drinking. Id. at 14. That objection

was sustained. Whether a non-testifying witness had been drinking was

irrelevant to Copper’s testimony, and the judge did not err in sustaining the

objection. Appellant was given a full and fair opportunity to develop whether

Copper or Johnson had been drinking that evening/early morning.

Third, after stating that she was familiar with firearms, the

Commonwealth objected to Appellant’s question regarding how Copper was

familiar with firearms. Id. at 15. Appellant does not argue on appeal why

this testimony should have been admitted, except to state baldly that

Appellant was prejudiced by being unable to test her credibility as to how

she was familiar with firearms. Appellant’s Brief at 25.

Fourth, in asking why Copper did not call the police after the first

gunshot, Appellant asked twice whether she called the police and also

whether she had a house phone to call the police. Answering in the

negative, Appellant then asked if she had a back door that she could walk

out, to which the judge sustained an objection because “[s]he said she was

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hiding in the kitchen” and therefore was not going to go out any back door if

she could. N.T., 7/24/2003, at 16-17. Appellant had exhaustively

established that Copper chose to do nothing in response to the first gunshot,

whether or not she had the capability to do anything.

None of these sustained objections, nor the single failure to rule on an

objection, deprived Appellant of a full and fair opportunity to cross-examine

Copper at the preliminary hearing. Accordingly, we conclude that the trial

court did not err in admitting her preliminary hearing testimony as

substantive evidence at Appellant’s trial.

Discretionary Aspects of Sentence

Finally, Appellant challenges the discretionary aspects of his sentence.

Appellant’s Brief at 37. Thus, we must first determine whether Appellant

has invoked this Court’s jurisdiction to review the merits of this claim.

Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (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, 42 Pa.C.S.[] § 9781(b).

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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

Appellant timely filed a notice of appeal, preserved the claim in a post-

sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

Thus, he has satisfied the first three requirements. We now turn to consider

whether Appellant has presented a substantial question for our review.

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

In his Pa.R.A.P. 2119(f) statement, Appellant presents several

arguments.

[T]he [c]ourt “double-counted” [Appellant’s] prior criminal
history, failed to adequately state reasons for departing from the
guidelines on the record, and more generally, failed to place
[Appellant’s] conviction into its appropriate context in terms of
the seriousness of the offense, need for rehabilitation, and need
for protection of the community. The court also heard evidence
of [Appellant’s] open case which served to inflame the passions
of the court.

Ultimately, the sentences on this single [case] were
imposed consecutively and the sentence for aggravated assault

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exceeded the guideline range by double. These two factors
raised the aggregate sentence to an excessive level in light of
the criminal conduct at issue.

Id. at 38-39.

With regard to Appellant’s purported substantial question based on his

consecutive sentences, we keep the following in mind.

Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively
to other sentences being imposed at the same time or to
sentences already imposed. Any challenge to the exercise of this
discretion ordinarily does not raise a substantial question. Thus,
in our view, the key to resolving the preliminary substantial
question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal
conduct at issue in the case.

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citations

and quotation marks omitted).

Here, Appellant entered someone’s home, shot an individual point-

blank in the chest, and was subsequently apprehended in possession of a

large amount of crack cocaine. The trial court sentenced Appellant as

follows: aggravated assault, 10 to 20 years of incarceration; carrying a

firearm without a license, 3 to 6 years of incarceration; PWID, 2½ to 5 years

of incarceration; and possession of firearms prohibited, 5 years of probation.

All sentences were set to run consecutively. Appellant’s aggregate sentence

of 15½ to 31 years of incarceration followed by five years of probation did

not raise Appellant’s sentence on its face to an excessive level in light of the

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criminal conduct at issue here. Thus, we find that Appellant has not raised a

substantial question in that regard.

However, Appellant does raise substantial questions by alleging that

the trial court did not state its reasons for his aggravated range sentence on

the record and by alleging that the court relied on impermissible factors in

fashioning his sentence, including double-counting his criminal history. See

Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003).

Our review of the record does not reveal that the trial court relied on

impermissible factors or double-counted any factors in sentencing Appellant.

Moreover, the trial court provided its reasoning for imposing the sentences it

did. Specifically, before sentencing Appellant, the court stated as follows.

In fashioning a sentence here today, the [trial c]ourt is taking
into account the presentence investigation, mental health report,
prior record score, offense gravity score and range, the history
and character of [Appellant], his allocution here today, his failure
to accept responsibility, and balancing that against his
rehabilitative needs as well as the need to protect the public,
and the gravity of the offense as it relates, in particular, to the
victim in this case; he was shot in the chest. Based on those
factors, I’m taking all of them into consideration.

N.T., 3/3/2017, at 16. Accordingly, we conclude that Appellant has failed to

demonstrate that the trial 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. Johnson, 125 A.3d

822, 826 (Pa. Super. 2015).

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/19

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