Com. v. Forshey, M.

J-A11045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL FORSHEY :
:
Appellant : No. 1129 WDA 2021

Appeal from the Judgment of Sentence Entered May 13, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002081-2018

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: May 15, 2023

Michael Forshey (Forshey) appeals from the judgment of sentence

imposed in the Court of Common Pleas of Blair County (trial court) after his

jury conviction of criminal use of a communication facility, recklessly

endangering another person (REAP), possession with intent to deliver a

controlled substance (PWID), and simple possession of a controlled

substance.1 He challenges the denial of a motion to suppress, the sufficiency

of the evidence and the discretionary aspects of his sentence. We affirm the

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. §§ 7512(a) and 2705(a) and 35 P.S. §§ 780-113(a)(30) and (16),
respectively. Forshey was found not guilty of drug delivery resulting in death,
18 Pa.C.S. § 2506(a).
J-A11045-23

conviction and the suppression decision. We vacate and remand for

resentencing.

I.

The charges in this matter arose from an incident involving the drug use

and death of decedent, Ronald Baker (Decedent), on April 2, 2018. Forshey

was arrested for drug delivery resulting in death, PWID, REAP and possession.

A.

On June 25, 2019, Forshey filed an omnibus pretrial motion that

included, in pertinent part, a motion to suppress his cell phones challenging

their search and seizure. He alleged that at the direction of the police, his

parole agents had seized the cell phones without reasonable suspicion and

that the search warrant for them was overbroad and lacked specificity. At the

hearing on the motion, Freedom Township Assistant Chief of Police Nathan

Claycomb, Parole Agent Bernard Smith and the Decedent’s mother, Donna

Diehl, testified.

1.

Assistant Chief Claycomb testified that on April 2, 2018, at

approximately 6:15 p.m., he was dispatched to 141 Fleetwood Court, East

Freedom, the mobile home of Decedent and Ms. Diehl. He was assisted by

Jason Loose of the Greenfield Township Police Department and emergency

medical services. Assistant Chief Claycomb observed the Decedent lying on

the bathroom floor, unresponsive and without a pulse, with a syringe nearby.

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Based upon his training and experience investigating both drug use and drug

trafficking violations, Assistant Chief Claycomb believed the syringe in the

area where the Decedent was lying was consistent with drug use and with him

intravenously using a controlled substance such as heroin (white powder) that

had caused him to collapse to the bathroom floor.

Assistant Chief Claycomb also observed an unlocked cell phone on the

bathroom sink. The cell phone rang several times and text messages from

Krista Frantz expressing concern about not hearing from the Decedent and

asking for return contact were visible. He learned from the Decedent’s

mother, Ms. Diehl, that Krista Frantz was the Decedent’s girlfriend.

The police secured the area and left the premises. A short time later,

at approximately 7:30 p.m., Ms. Diehl went to the police station and provided

Assistant Chief Claycomb with a small plastic baggie of white powder that she

found in a cubbyhole under the sink after law enforcement left her home.

While processing the scene, Assistant Chief Claycomb had not searched the

area where Ms. Diehl had located the baggie but he confirmed its existence

from a cell phone video of the location.

Assistant Chief Claycomb testified that he conducted an interview of

Decedent’s girlfriend, Ms. Frantz, at the police station that night. Ms. Frantz

advised him that earlier she and the Decedent had been discussing his heroin

use and that earlier that day, she saw a text message from Forshey to the

Decedent discussing a $125 figure. Ms. Frantz suspected it was for the

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purchase of a controlled substance and she confronted the Decedent about it.

According to Ms. Frantz’s report to Assistant Chief Claycomb, the Decedent

left her residence around 3:15 p.m. to go to the Chimney Rocks area, where

Assistant Chief Claycomb later learned Forshey’s girlfriend lived. When he

returned around 5:00 p.m., the Decedent showed Ms. Frantz a small tied-off

plastic baggie that contained a white powder that he said was heroin. Her

description of the baggie was consistent with the baggie found in the bathroom

cubbyhole.

According to Assistant Chief Claycomb, it is common for heroin to be

laced with other drugs. The white powder from the baggie was tested by the

Pennsylvania State Police Crime Lab and determined to be heroin and

fentanyl. An autopsy was conducted and a report was prepared by the Blair

County Coroner's Office.

2.

On the date of the April 2, 2018 incident, Forshey was on state parole

and living in Tomorrow’s Hope, a “community correction center,” i.e., a

halfway house, in Cambria County. Assistant Chief Claycomb contacted state

parole and advised that he was preparing search warrants for Forshey’s cell

phone(s) due to a drug-related incident.

Assistant Chief Claycomb authored three search warrants for the

Decedent’s cell phone, Ms. Frantz’s cell phone and Forshey’s cell phone(s).

The search warrants were authorized and sealed by the Honorable Timothy M.

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Sullivan on April 3, 2018, at 9:50 a.m. and admitted as part of the record.

The search warrant application for Forshey’s cell phone(s) sought “[a]ny and

all electronic devices, cellular telephones, on the person of, being used by,

and or possessed by Michael Lee Forshey, including a forensic download of

said phone(s) to include:”

Any and all messages including text SMS messages, Face
messenger application messages, Snapchat application data
including photographs/messages, and other messenger
application messages including emails stored on and possessed by
Michael Lee Forshey. Any and all photographs stored on the
device including photographs stored in applications on said device.
Any and all history logs, messages and voicemail messages stored
on cellular devices in the possess[ion] of and used by Michael Lee
Forshey. Any and all videos stored on the devices. Any and all
data, deleted data, user info, contact information, phone
numbers/emails addresses, IP addresses and documents stored
on the device. Cellular device user access security passcode.

(Application for Search Warrant, 4/03/18, at 1, 4). The affidavit of probable

cause included all the facts of the incident detailed by Assistant Chief

Claycomb above and stated:

With the evidence collected at the scene including the syringe and
needle, the cell messages observed by Ms. Frantz, the drugs seen
by Ms. Frantz and any and all evidence collected, this officer has
probable cause that the [decedent] died from a drug overdose
from drugs supplied by Michael Forshey. This officer seeks a
search warrant for Michael Forshey[’s] cell phone and its contents
to confirm the messages observed by Ms. Frantz, as well as to
investigate any and all evidence of this crime. This officer has
knowledge from prior drug cases, that drug dealers use cellular
devices to arrange drug transactions.

This affiant is seeking a sealed search warrant to preserve
evidence, especially cell evidence which can be easily []
destroyed. A sealed search warrant is also requested to prevent
details that could lead to the destruction of evidence, particularly

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given the investigation still needed in this case and given the time
limitations on this investigation due to the death just recently
occurring.

(Affidavit of Probable Cause, 4/03/18, at 3).

He went on to testify that he received Forshey’s cell phones in Altoona

at the state parole office when he interviewed Forshey the next day, April 3,

2018. He did not request state parole agents to seize and/or search Forshey

or his cell phones. A forensic examination of the cell phones revealed that the

Decedent and Forshey had communication with each other on April 1, 2018,

through April 2, 2018. On April 1, 2018, Forshey sent the Decedent the

following: “I got SM really good D, 125 bun. It’s raw so it ain't in bags. Hit

me up tomorrow and let me know.” The Decedent responded, “hold me one

of them for after 3 for me, bro,” to which Forshey responded, "for sure? BC I

got four left and they have been going.” The Decedent replied, “for sure.

Definitely got the $. Around 4. Getting rid of my impala tomorrow then.”

Forshey replied, “ok bro, talk to you tomorrow.” The Decedent responded,

“For sure," and Forshey sent a thumbs up. (N.T. Hearing, 10/21/19, at 24).

At approximately 3:30 p.m. on April 2, 2018, the Decedent texted

Forshey, “Hey, what’s up?” and asked him to call. He then texted that he was

“on [his] way over.” (Id.). Assistant Chief Claycomb testified that the

exchange was consistent with a transaction for a controlled substance. He

also advised the Court that based upon his training and experience, a “bun”

was a reference to a bundle of heroin. (Id. at 25). “Raw” and “it ain’t in

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bags” referenced in the text messages referred to the purity of the controlled

substance as not being disturbed yet by use of a cutting agent like baking

soda. “Bags” is a reference to how it would be prepared for delivery. (Id.).

3.

In her statement to Assistant Chief Claycomb on May 5, 2018, Ms. Diehl

said that after she picked the Decedent up from his girlfriend’s house on April

2, 2018, the Decedent had her “drive him to Mike Forshey’s girlfriend’s

residence in Chimney Rocks.”2 (Id. at 42). The Decedent asked her for $50

and advised that Forshey needed money for something in his halfway house.

Ms. Diehl advised that when they departed the residence, they returned to

Ms. Frantz’s house and then back to the residence of Ms. Diehl and the

Decedent.

Upon returning to the Decedent/Ms. Diehl’s home, the Decedent went

into the bathroom and Ms. Diehl found him dead 45 minutes later. She said

that after the police left, she found a three-inch metal tin with a baggie

containing something white inside it in a cubbyhole in the floor under the sink.

She went to the police station and gave the item to Assistant Chief Claycomb

because she did not know what it was and had not seen it before.

____________________________________________

2At the hearing, Ms. Diehl testified that on April 2, 2018, she picked up the
Decedent at Ms. Frantz’s residence, but that they then drove straight back
home. (See N.T., 1/21/20, at 3, 7).

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J-A11045-23

4.

Bernard Smith has been a state parole agent for 20 years. He and Agent

Todd Yarnell met with Forshey on April 3, 2018, at Tomorrow’s Hope because

they had received information that Forshey was involved in drug-related

criminal activity that violated his parole and there were issues with his home

plan, so they went “to pick him up and transport him back to the [State Parole]

district office [in Altoona,] at which point there would be a meeting held,

possibly a conference and all those matters would be looked into, discussed

and so forth.” (N.T. Hearing, 1/21/20, at 17-18). Agent Smith stated they

searched Forshey’s backpack and other belongings at Tomorrow’s Hope as

part of the initial pat-down for weapons and contraband and then returned

them to him, as was their customary practice before transporting a parolee.

While they might have briefly taken his cell phone as part of the initial pat-

down, no cell phones were searched or seized. When asked if he was directed

by Assistant Chief Claycomb to detain Forshey and “get his cell phones,” the

agent responded, “No, absolutely not. … No. No, not at any point in time.”

(Id. at 22-23); (see id. at 28-29). Agent Smith was aware that search

warrants were being prepared for Forshey, but he did not discuss them with

Forshey because that was not the purpose of meeting with him.

As was their customary practice, Forshey was handcuffed for transport

during the initial contact with the parole agents at Tomorrow’s Hope but was

not handcuffed at the district office in Altoona. There was an initial meeting

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with parole agents and then Forshey stayed in the waiting room until Assistant

Chief Claycomb arrived approximately half-an-hour to an hour later. Agent

Smith testified Forshey himself provided the cell phones to Assistant Chief

Claycomb in Altoona and admitted that he could have deleted content on the

cell phones, including messages and call logs.

On March 24, 2020, the trial court entered an opinion and order denying

Forshey’s motion to suppress the cell phone evidence, finding Assistant Chief

Claycomb’s explanation about the cell phones’ search and seizure credible and

consistent with the recollection of Agent Smith. It also stated that it reviewed

the four corners of the search warrant and that sufficient facts were alleged

to support probable cause. (See Trial Court Opinion, 3/24/20, at 13-14).

B.

At Forshey’s three-day trial, the testimony of Assistant Chief Claycomb,

Ms. Diehl and Agent Smith was consistent with their testimony detailed above

from the suppression hearing.

In addition, forensic pathologist Dr. Harry Kamerow testified about the

Decedent’s autopsy results, which reflected that heroin, fentanyl and

methamphetamine were found in the Decedent’s blood. According to Dr.

Kamerow, the Decedent died of an opioid overdose, with the amount of

fentanyl found in Decedent’s blood enough to kill him without the presence of

anything else. Detective Randy Feathers testified in his expert capacity about

the investigation of controlled substance violations relative to price and

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quantity of sales in the area. He explained that a typical glassine baggie

contains .01-.02 grams of heroin, with a bundle of heroin containing ten

baggies for a total weight of .1-.2 grams. Where the heroin is sold raw, what

is typically a bundle is sold in one bag because it has not been cut and

separated into separate baggies yet. According to Detective Feathers, a

bundle of heroin typically sells for $125 in that area. Stacy Cox of the state

police crime lab confirmed that the bag of heroin and fentanyl in this case

weighed approximately .2 grams, the typical amount of a bundle.

Officer Loose confirmed Assistant Chief Claycomb’s observation of the

syringe and cell phone at the scene and the accuracy of photos. His testimony

conflicted regarding the cubbyhole under the sink, as he testified that he

looked in it and did not see drugs. He also testified that they performed an

exhaustive search of the Decedent/Ms. Diehl’s trailer and did not see

controlled substances anywhere else.

Assistant Chief Claycomb offered additional testimony. He stated that

contrary to Officer Loose’s testimony, the two officers only searched the

bathroom area, not the whole house. He saw what has been referred to as

the “cubbyhole” under the sink when he was dispatched to the scene. He

testified that he and Officer Loose did not physically search the area, which

was a cut-out from the floor in which he could see plastic and insulation as if

someone had made the cut to gain access to repair a water pipe. He further

testified that at 7:23 p.m., he was back at the police station interviewing Ms.

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Frantz when Ms. Diehl brought him the metal box containing a plastic baggie

with white powder, a spoon and glass jar that she said she discovered

searching in the floor opening.

Assistant Chief Claycomb confirmed that the baggie contained

approximately .2 grams of uncut heroin and fentanyl, which was consistent

with Forshey’s description of it in his messages with the Decedent. He also

stated that $125 is the typical cost of a bundle of heroin. Finally, he testified

about his incident report that described his interview with Forshey shortly after

the crime. According to the report, Forshey admitted he met with the

Decedent at approximately 3:30 p.m. on April 2, 2018. Although he tried to

blame another individual for providing the Decedent with the drugs, Assistant

Chief Claycomb personally knew that the person Forshey was blaming was

incarcerated at the time.

Similarly, in addition to testifying consistently with her initial statement

to Assistant Chief Claycomb, Ms. Frantz added that she contacted Forshey

about a month after Decedent’s death after finding him based on the

messages on the Decedent’s cell phone and he said he had seen the Decedent

the day of his death but denied supplying him with drugs.

The jury convicted Forshey of the foregoing crimes and the trial court

ordered the preparation of a presentence investigation report (PSI) and

sentencing memoranda. At the sentencing hearing, Forshey’s fiancé, sister

and pastor friend testified for leniency. With the benefit of the PSI, and in

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consideration of the sentencing guidelines (Guidelines) and Sentencing Code,

the court imposed an aggregate sentence of not less than seventeen-and-a-

half nor more than thirty-five years’ incarceration. The aggregate sentence

included: not less than fifteen nor more than thirty years’ imprisonment for

PWID, which was seven-and-a-half times above the Guidelines, plus

consecutive terms of eighteen to thirty-six months on criminal use of a

communication facility and twelve to twenty-four months on REAP.3

After the trial court denied Forshey’s post-sentence motion, he timely

appealed and filed a court-ordered statement of errors. See Pa.R.A.P.

1925(b). In his appeal, Forshey maintains that the trial court erred by: (1)

denying his motion to suppress where the parole agents acted as “stalking

horses”4 for the police and the four corners of the overbroad search warrant

____________________________________________

3 Pursuant to the Pennsylvania Sentencing Guidelines, 7th Edition, 4th
Amendment, (Guidelines), which apply to an offense committed on April 2,
2018, the standard range for delivery of heroin, mixed with fentanyl, another
narcotic, with an approximate weight 0.20 grams had an “Offense Gravity
Score” of “six”, so that, with Forshey’s “Prior Record Score” of “five”, the
applicable standard range is 21 to 27 months and the applicable aggravated
range is six months, resulting in the upper end of the aggravated range at 33
months; for criminal use of a communications facility, the Guidelines sentence
was 12–18 months with an aggravated range of three months, and for
recklessly endangering another person, the Guidelines range was 6–16
months with an aggravated range of three months. See 204 Pa. Code
§§ 303.15, 303.16(a).

4 A search under the stalking horse theory occurs when a parole or
probationary search is conducted as “a subterfuge for a criminal investigation”
to evade the Fourth Amendment’s warrant and probable cause requirements,
a violation of the Fourth Amendment. Commonwealth. v. Edwards, 583

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did not contain probable cause; (2) finding that the evidence was sufficient to

support his conviction; and (3) imposing an unreasonable sentence.

II.

A.

We first address Forshey’s claim that the trial court erred in denying his

motion to suppress5 because the police used his parole agents as “stalking

horses” for their investigation in violation of his constitutional right to be free

from unreasonable, warrantless searches and seizures.

A parolee has a diminished expectation of privacy, and the Fourth

Amendment protections of a parolee with respect to searches are more limited

____________________________________________

A.2d 445, 448 (Pa. Super. 1990), rev'd sub nom on other grounds,
Commonwealth v. Pickron, 634 A.2d 1093 (Pa. 1993).

5

Our standard of review in addressing a challenge to a trial court’s
denial of a motion to suppress is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Because the
prosecution prevailed in the suppression court, we may consider
only the evidence of the prosecution 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 record supports the
factual findings of the suppression court, we are bound by those
facts and may reverse only if the legal conclusions drawn from
them are in error.

Commonwealth v. Bell, 871 A.2d 267, 271 (Pa. Super. 2005), appeal
denied, 882 A.2d 1004 (Pa. 2005) (citations omitted). We grant great
deference to the trial court’s credibility findings. See Commonwealth v.
Carmenates, 266 A.3d 1117, 1123 (Pa. Super. 2021).

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than the protections afforded the average citizen. See Commonwealth v.

Hughes, 836 A.2d 893 (Pa. 2003). Because parole assumes that the parolee

is more likely than the ordinary citizen to violate the law, parole agents need

not have probable cause to search a parolee or their property; instead,

reasonable suspicion is sufficient to authorize a search. See Commonwealth

v. Colon, 31 A.3d 309, 315 (Pa. Super. 2011), appeal denied, 42 A.3d 1058

(Pa. 2012). Parolees agree to warrantless searches based only on reasonable

suspicion in exchange for their early release from prison. See

Commonwealth v. Koehler, 914 A.2d 427 (Pa. Super. 2006), appeal denied,

961 A.2d 858 (Pa. 2008). The search of a parolee is only reasonable, even

where the parolee signed a waiver, where the totality of the circumstances

demonstrate that: (1) the parole officer had reasonable suspicion to believe

that the parolee committed a parole violation, and (2) the search was

reasonably related to the duty of the parole officer. Colon, 31 A.3d at 315.

The trial court found the testimony of Assistant Chief Claycomb and

Agent Smith that Forshey’s “cell phone was not confiscated by the state parole

agents, but rather was seized by Assistant Chief Claycomb to safeguard the

evidence while search warrants were being obtained to secure the phone and

prevent [Forshey] from destroying potential evidence” to be credible. (Trial

Court Opinion, 6/01/22, at 10); (see Trial Ct. Op., 3/24/20, at 13). This

credible evidence established that upon learning that Forshey was suspected

of being involved in a crime that included illegal drugs, the parole agents went

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to Tomorrow’s Hope to transport him to the district office in Altoona to meet

with him about the criminal allegations as well as issues with his home plan.

Per their usual practice, they handcuffed Forshey for transport and searched

him and his backpack for possible weapons and illegal contraband, not for

evidence of his involvement in the subject crime. They did not search

Forshey’s cell phone and all his belongings were returned to him before they

transported him to the district office. While Agent Smith was aware that

Assistant Chief Claycomb was securing a search warrant for the cell phone

and would meet them at the district office, he unequivocally repeated several

times that the purpose of their interaction with Forshey was not about the

criminal investigation, and that the police never directed him to detain Forshey

or secure his cell phone on their behalf. At the district office, Forshey gave

the police officer his cell phone and password.

Based on the foregoing, Forshey’s argument that the parole agents were

acting as stalking horses for the police lacks merit.

B.

Next, we consider Forshey’s claim that the trial court erred in denying

his motion to suppress the cell phones because the search warrant was

defective, i.e., it was overbroad and did not contain probable cause.

In order to discourage general or exploratory searches, all search

warrants must name or describe with particularity the property to be seized

and searched. See U.S. Const. Amend. 4; Pa. Const. Art. 1 § 8;

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Commonwealth v. Rega, 933 A.2d 997, 1101-02 (Pa. 2007), cert. denied,

128 S. Ct. 1879 (2008). The search warrant must authorize the seizure of

identifiable, existing property. See Commonwealth v. Bagley, 596 A.2d

811, 815 (Pa. Super. 1991), appeal denied, 611 A.2d 637 (Pa. 1992), cert.

denied, 506 U.S. 1002 (1992). Although a failure to name or describe the

item to be searched with sufficient particularity will invalidate a search warrant

and any subsequent search and seizure, warrants should nonetheless be read

in a commonsense fashion and not invalidated by hyper-technical

interpretations. See Commonwealth v. Johnson, 33 A.3d 122, 125 (Pa.

Super. 2011); Pa.R.Crim.P. 205, Cmt. (“[W]arrants should … be read in a

common-sense fashion and should not be invalidated by hyper technical

interpretations. … [W]hen an exact description of a particular item is not

possible, a generic description may suffice.”) (citation omitted).

Forshey’s claims that the search warrant application was overbroad and

lacked specificity is not availing because it sought “[a]ny and all electronic

devices, cellular telephones, on the person of, being used by, and or possessed

by Michael Lee Forshey” due to his suspected involvement in drug trafficking

on April 2, 2018, that resulted in the Decedent’s death. The attached affidavit

of probable cause detailed the facts of the case with particularity and clearly

indicated that Forshey was a suspect in the case due to messages on the

Decedent’s cell phone between the men about the purchase of drugs.

Although the application did not specifically identify Forshey’s cell phone and

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sought any and all information on it, a common-sense reading of the warrant

reveals that police sought Forshey’s cell phone because they knew he had

communicated with the Decedent about the purchase of drugs earlier that day

and they did not want the evidence destroyed.

III.

Forshey argues that the trial court erred in finding that the evidence was

sufficient to convict him6 because there was no direct evidence that he sold

drugs to the Decedent.7 He maintains that the speculative and circumstantial

____________________________________________

6 Forshey does not identify which of the four crimes with which he was
convicted he is challenging or specify the elements that he believes the
Commonwealth failed to prove. See Commonwealth v. Samuel, 102 A.3d
1001, 1005 (Pa. Super. 2014), appeal denied, 134 A.3d 56 (Pa. 2016) (“In
order to develop a claim challenging the sufficiency of the evidence properly,
an appellant must specifically discuss the elements of the crime and identify
those which he alleges the Commonwealth failed to prove.”) (citation
omitted). Because Forshey “has failed to do so, he has waived this claim for
lack of development.” Id. (citation omitted).

7

The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
find that each element of the crimes charged is established beyond
a reasonable doubt. The Commonwealth may sustain its burden
of proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.

The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt raised
as to the accused’s guilt is to be resolved by the fact-finder. As
an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record. Therefore, we will not

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evidence in this case does not rise to the level of proof beyond a reasonable

doubt.

To establish the felony of PWID, “the Commonwealth must prove

beyond a reasonable doubt both that the defendant possessed the controlled

substance and had the intent to deliver it.” Commonwealth v. Carpenter,

955 A.2d 411, 414 (Pa. Super. 2008) (citation omitted); see 35 P.S. § 780-

113(a)(30). “[P]ossession can be found by proving actual possession,

constructive possession, or joint constructive possession.” Commonwealth

v. Bowens, 265 A.3d 730, 741 (Pa. 2021), appeal denied, 279 A.3d 508 (Pa.

2022) (citation omitted). “The intent to deliver may be inferred from an

examination of all the facts and circumstances surrounding the case.”

Commonwealth v. Harper, 611 A.2d 1211, 1217 (Pa. Super. 1992) (citation

omitted). Criminal use of a communication facility “is committed if the

defendant uses the communication facility ‘to commit, cause or facilitate the

commission or the attempt thereof of any crime which constitutes a felony

under this title or under the act ... known as The Controlled Substance, Drug,

Device and Cosmetic Act.” 18 Pa.C.S. § 7512(a). A person commits the crime

____________________________________________

disturb the verdict 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.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014), appeal
denied, 102 A.3d 985 (Pa. 2014) (citations and quotation marks omitted).

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of reckless endangerment of another person if he “recklessly engages in

conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S. § 2705.

Although the Commonwealth was required to prove all of the above

elements to support Forshey’s conviction, his only argument is that the

Commonwealth failed to establish that he delivered the heroin to the

Decedent. We disagree.

Reviewing the evidence presented in this case in the light most favorable

to the Commonwealth, we agree with the trial court that it was sufficient to

prove that Forshey committed the above crimes. As the court explains:

Circumstantial and direct evidence established the
Decedent’s actions the day he died, including his electronic
communications with [Forshey] and the timing of that late
afternoon meeting, as well as, the Decedent going home with his
mother thereafter and within a short period of time, the mother’s
911 call. It is reasonable to infer that the syringe [found at the
scene] was related to the Decedent’s death. The prompt police
investigation that followed resulted in interviews and search
warrants for cell phones. Forensic extractions from the cell
phones corroborated the communications between the Decedent
and [Forshey] leading up to April 2nd. Said extractions also
supported Ms. Frantz follow-up communications with [Forshey]
and lead to a reasonable inference that [he] was the one whom
the Decedent met to obtain a bundle of heroin the day he died.
In fact, [Forshey] in communications with Ms. Frantz about a
month later admits meeting with the Decedent. … The drugs
recovered from the bathroom scene where the Decedent was
discovered were found consistent with a description of drugs
between [Forshey] and the Decedent. Furthermore, said
substance was forensically tested and determined to a reasonable
degree of scientific certainty to contain a mixture of heroin and
fentanyl and weighed .2 grams. (See N.T, 8/06/20, at 49-50).
The Defense stipulated to the lab report, confirming those results.
Detective Feathers told the jury that a bundle of heroin is

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approximately ten (10) smaller amounts separately bagged,
weighing between . 01 to . 02 grams for each. This testimony
supported the conclusion that the baggie of drugs tested by the
lab (weighing .2 grams) was equivalent to a bundle of heroin, as
described in the messages from [Forshey] to Decedent. (“[i]t’s
raw so it ain’t in bags.”) (N.T., 8/05/20, at 24). The forensic
testing of the drugs recovered corroborated the forensic findings
of the drugs in the Decedent’s system on autopsy. Both scientific
procedures confirmed heroin and fentanyl. The forensic
pathologist, Dr. Kamerow also testified that the Decedent had
“whopping” fatal amounts of fentanyl in his system, over three (3)
times the lethal dose. He told the jury that the Decedent had
morphine in his blood and the source of the morphine was heroin,
not medicinal morphine. He listed the death as multidrug
overdose due to heroin, fentanyl, and methamphetamine with
fentanyl, as the dominant compound causing death and “in and of
itself sufficient to cause death at that concentration.” (N.T.,
8/07/2020, at 37); (see id. at 35-38). For purposes of
[Forshey]’s argument in this regard, Dr. Kamerow’s testimony
was impactful for the jury even without a conviction on the drug
delivery resulting in death charge because he described how
dangerous and lethal the drugs in Decedent’s system were to the
human body. The jury concluded that the drugs discovered in the
bathroom were delivered by [Forshey] and that the substance
contained heroin and fentanyl, with Dr. Kamerow’s expert
testimony they were further able to appreciate the risk [Forshey]
posed to the Decedent when he provided the drugs obtained from
the scene to Decedent. …

* * *

It is reasonable for the jury to conclude that [Forshey] acted
recklessly when providing heroin mixed with fentanyl to the
Decedent in light of the dangers of a substance that can cause
serious bodily injury or death. For the foregoing reasons,
[Forshey]’s argument against the sufficiency of the evidence must
fail.

(Trial Ct. Op., 6/01/22, at 31-33) (some record citation formatting provided).

Our independent review of the record confirms the trial court’s factual

findings about the testimony presented at trial. Forensic extractions of

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Forshey’s and the Decedent’s cell phones showed Forshey and the Decedent

discussing the purchase of the exact drugs found at the scene for the precise

amount for which they would be sold. (See, e.g., N.T., 8/05/19, at 29, 81-

85). Testimony established that Forshey admitted that he met with the

Decedent at approximately 3:30 p.m. on April 2, 2018, and tried to blame the

drug sale on an individual who was imprisoned at the time. (See id. at 71-

73). After returning home from meeting Forshey, the Decedent was dead

within 45 minutes from a heroin/fentanyl overdose. Any conflict in testimony

between Officer Loose and Assistant Chief Claycomb and questions about the

“cubbyhole” went to the weight of the evidence, not its sufficiency, and was

solely within the province of the jury to resolve.

Based on the foregoing, there was sufficient direct and circumstantial

evidence that Forshey possessed heroin with the intent of delivering it to the

Decedent, used a cell phone to communicate with him about the transaction,

and did so in reckless disregard of the Decedent’s possible injury or death.

This issue lacks merit.

IV.

Finally, we consider Forshey’s claim that the trial court abused its

discretion and imposed an unreasonable sentence when it considered

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J-A11045-23

acquitted conduct and pending charges, double-counted his prior record score,

failed to consider mitigating factors and was unreasonable.8

A.

This issue challenges the discretionary aspects of sentences. See

Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005) (claim that

sentence is manifestly excessive goes to discretionary aspects of sentencing);

Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc)

(“[M]isapplication of the Sentencing Guidelines constitutes a challenge to the

discretionary aspects of sentence.”); Commonwealth v. Cruz-Centano, 668

A.2d 536, 545 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996)

(claim that sentencing court failed to consider certain mitigating factors

implicates the discretionary aspects of sentence). It is well-settled that

“[c]hallenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must 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

____________________________________________

8 42 Pa. C.S. § 9781(c) provides that an “appellate court shall vacate the
sentence and remand the case to the sentencing court with instructions if it
finds: ... (3) the sentencing court sentenced outside the sentencing guidelines
and the sentence is unreasonable.”

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J-A11045-23

the concise statement raises a substantial question that the
sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

Forshey filed a timely notice of appeal, properly preserved his claim by

filing a post-sentence motion for reconsideration, and includes a concise

statement of the reasons relied upon for allowance of appeal under Rule

2119(f). See Pa.R.A.P. 2119(f). We also conclude that Forshey has raised a

substantial question that the sentence is not appropriate under the Sentencing

Code. See Commonwealth v. Banks, 198 A.3d 391, 401 (Pa. Super. 2018)

(“a claim that the sentencing court relied on impermissible factors in

sentencing raises a substantial question.”) (citation omitted);

Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2016), appeal

denied, 168 A.3d 1287 (Pa. 2017) (“While a bald claim of excessiveness does

not present a substantial question for review, a claim that the sentence is

manifestly excessive, inflicting too severe a punishment, does present a

substantial question.”); Commonwealth v. Johnson, 758 A.2d 1214, 1216

(Pa. Super. 2000), appeal denied, 775 A.2d 803 (Pa. 2001) (“A claim that the

sentencing court misapplied the Sentencing Guidelines [by miscomputing prior

record score] presents a substantial question.”). We will, therefore, consider

the merits of Forshey’s claim.

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J-A11045-23

B.

When imposing a sentence above the Guidelines, Pennsylvania law

requires that the sentencing court “make as part of the record and disclose in

open court at the time of the sentencing, a statement of the reason or reasons

for the sentence imposed.” 42 Pa.C.S.. § 9712(b). “Indeed, in fashioning

sentence, a judge is obligated to follow the general principle that the sentence

imposed should call for confinement consistent with the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and the community, and the rehabilitative needs of the Defendant.”

Commonwealth v Monahan, 860 A.2d 180,184 (Pa. Super. 2004), 878 A.2d

863 (Pa. 2005).

In cases where, as here, a sentence outside of the Guidelines is

imposed, the sentencing court must provide, in open court, a

contemporaneous statement of reasons in support of its sentence. See 42

Pa. C.S. § 9721(b).

In every case where the court imposes a sentence or resentence
outside the Guidelines ... 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.

Id.; see Commonwealth v. Serrano, 150 A.3d 470, 474 n.7 (Pa. Super.

2016) (“[A] sentencing court’s reasons for a particular sentence must be given

contemporaneously with the imposition of sentence. A more extensive

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J-A11045-23

explanation in an opinion filed pursuant to Rule 1925(a) will not cure a failure

to articulate reasons at the time of sentencing.”) (internal quotation omitted).

Where the trial court deviates substantially from the sentencing

guideline range, it is especially important that the court considers all factors

relevant to the determination of a proper sentence. See Commonwealth v.

Messmer, 863 A.2d 567, 573 (Pa. Super. 2004). It also may not double-

count factors that were already contemplated in the calculation of the

Guidelines, including the offense gravity score and prior arrest record. See

Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000), appeal

denied, 759 A.2d 920 (Pa. 2000).

The touchstone that the sentencing court should consider in going above

the Guidelines is whether the conviction “is compellingly different from the

‘typical’ case of the same offense,” or if the information reflects upon the

defendant’s character. Commonwealth v. Robertson, 874 A.2d 1200, 1213

(Pa. Super. 2005); Commonwealth v. Glass, 50 A.3d 720, 729 (Pa. Super.

2012), appeal denied, 63 A.3d 774 (Pa. 2013). For example, while the age of

the victim is not an element of the crime of robbery, the fact that appellant

and his accomplices chose to victimize a defenseless 70-year-old female was

properly considered as a substantial aggravating factor. See

Commonwealth. v. Darden, 531 A.2d 1144, 1149 (Pa. Super. 1987). A

sentencing court may use information going to the offense gravity score and

prior arrest record “to supplement other extraneous sentencing information.”

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J-A11045-23

Commonwealth v Simpson, 829 A.2d 334, 339 (Pa. Super. 2003) (affirming

sentence where trial court considered defendant’s prior record score, in

addition to the impact on the victim, threat to the community and defendant’s

lack of successful rehabilitation).

C.

In this case, it was agreed at sentencing that Forshey’s conviction for

PWID is his ninth, making his prior record score five, and that the standard

range guideline sentence for his PWID conviction is not less than 21 nor more

than 27 months’ incarceration, with an aggravated range of 33 months.9 (See

N.T. Sentencing, 5/03/20, at 4). Forshey’s counsel also agreed that the

statutory maximum for Forshey’s PWID conviction is 30 years. (See id. at 5,

15).10

____________________________________________

9 A sentencing guideline is based on two factors: 1) the seriousness of the
offense, known as the “offense gravity score”; and 2) the defendant’s prior
criminal record known as your “prior record score.” To calculate the offense
gravity score, each crime is assigned point value. The higher the number
value, the higher the offense gravity score. See 204 Pa.Code §303.15. A
prior record score is based on the defendant’s prior criminal record. The score
is a point value between one and five, or the most serious offenders may be
categorized in the RFEL or RVOC category. All misdemeanor and felony crimes
will be added together in the computation of your prior record score. Out-of-
state criminal offenses will be counted toward the prior record score. 204
Pa.Code §303.7(a)(4).

10 Section 780-115 of the Drug Act provides, “[a]ny person convicted of a
second or subsequent offense under [35 P.S. § 780-113(a)(3) (PWID)] … may
be imprisoned for a term up to twice the term otherwise authorized[.]” 35
P.S. § 780-115(a); see Commonwealth v. Young, 922 A.2d 913, 917-18
(Pa. Super. 2007) (“The terms of this provision expressly empower the trial

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J-A11045-23

Contrary to Forshey’s claim, the trial court expressly acknowledged at

the sentencing hearing and in the sentencing order that it considered the PSI11

and all mitigating factors offered on Forshey’s behalf. (See N.T. Sentencing,

5/13/21, at 32-35); (Order, 5/13/21). Specifically, the court observed that

Forshey’s fiancé, sister and pastor friend all expressed a desire that he remain

sober. Echoing what it said at the sentencing hearing, the trial court in its

sentencing order explained the reasons that it imposed a sentence outside the

Guidelines. First, it found that Forshey was a drug addict and failed at

rehabilitation and noted that:

[Forshey] had been offered numerous opportunities for drug
treatment in various forms. He had undergone all forms of
supervision from incarceration to parole to probation to a half-way
house. At the time of commission of the instant crimes he was
living in a half-way house. He also was provided inpatient in 2006,
which he completed successfully according to the PSI. He
completed drug and alcohol treatment while incarcerated in a
State Correctional Facility in 2004. He was in treatment at Twin
Lakes and while in Cambria County jail in 2005. He attended AA
meetings when incarcerated in SCI—Mercer in 2016. Despite
these opportunities for rehabilitation, he has not been successful.
____________________________________________

court to double the maximum ... sentence for a second or subsequent drug
conviction.”). See Commonwealth v. Young, 922 A.2d 913, 917-18.
Therefore, although the statutory maximum for PWID generally would be 15
years, because this is Forshey’s ninth conviction, it is 30 years. (See N.T.
Sentencing, at 5). It does not affect the Guidelines for PWID.

11 Where the sentencing court has the benefit of reviewing a presentence
investigation report, “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.” Commonwealth v.
Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal quotations and citation
omitted).

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J-A11045-23

Particularly noteworthy is his delivery of drugs while participating
in a half-way house program through state supervision, another
squandered chance by Appellant to reintegrate into society in a
law abiding way.

(Trial Ct. Op., 6/01/22, at 25).

It also found that an increased sentence was warranted because of his

prior criminal history. Forshey stipulated to his record and history contained

in the PSI, which reflected that he was 39 years old and had been in and out

of prison since the 1990s. Regarding those convictions, the trial court stated

that he:

had 24 confinements, 35 prior convictions, 23 paroles granted, 3
paroles denied, 15 prior probations, which were referenced by the
court at the time of the sentencing hearing. The PSI shows that
[Forshey]’s half-way house placement was for a prior delivery of
a controlled substance sentence. Furthermore, and with all due
respect to the [Forshey]’s fiancé, who asks for leniency, and cites
the couple’s thirteen-year-old son with special needs, [Forshey]’s
aforementioned history included in the PSI revealed that during
the life time of the child in 2007 or 2008 until the date of incident
in the case at bar (April 2, 2018), [Forshey] had been arrested
seventeen (17) times. The PSI indicates that he was in and out
of county prison; or on probation; or sentenced to state
correctional institutions for several of those offenses. During this
time, he was also subject to incentivize revocations and
recommitted on supervision violations. Clearly, [Forshey]’s child
has not been a deterrent for him. … His history with the criminal
justice system did not demonstrate a man committed to recovery
and his family or in need of a sentence heavy on services and a
sentence light on punishment and/or community protection.
Instead, it presented a person who, despite (the testified to)
family/friend support and his family/fatherhood obligations and
despite the involvement of drug and alcohol treatment, chose
crime time after time. [Forshey]’s poor history was cited by the
court as a basis for the sentencing scheme. This is information,
which the numbers in the sentencing Guidelines for prior record
scores or offense gravity scores did not capture.

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J-A11045-23

(Id. at 26) (some capitalization omitted). Contrary to Forshey’s claim that

the trial court double-counted by using these convictions when they were

already factored in the prior arrest record, it did not do so because his history

was pertinent to his failure to successfully complete rehabilitation and that he

sold drugs in this case while still in a halfway house, although on a work

release schedule.

In addition to Forshey’s background and criminal history, the court

found going above the Guidelines was necessary to protect public safety

because Forshey sold heroin laced with fentanyl:

The need to protect society is supported by the record of the
proceedings and the information within the PSI. The sentencing
Guidelines did not adequately account for confinement and
supervision required for the safety of the community. [Forshey]
with his history of several prior drug dealing convictions, engaged
in providing deadly drugs, according to the testimony and expert
opinion of Dr. Kamerow about the lethality of fentanyl and heroin.
[Forshey] wishes to focus on the acquittal of the Drug Delivery
Resulting in Death Charge. However, the charges for which [he]
stands convicted makes Dr. Kamerow’s testimony on the risks of
heroin and fentanyl relevant and impactful for sentencing when
combined with the testimony of the forensic scientist and lab
report that the substances obtained from the scene and
forensically tested contained those same hazardous and lethal
controlled substances. Dr Kamerow told the jury that fentanyl is
extremely lethal and part of many drug overdose autopsies he
performs. Under these circumstances and considering the history
of [Forshey], the sentence imposed appropriately addresses public
safety.

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J-A11045-23

(Id. at 27).12

Based on the foregoing, the trial court expressly considered “the

protection of the public, the gravity of the offense as it relates to the impact

on the community, and the rehabilitative needs of the Defendant.” Monahan,

860 A.2d at 184. Those factors justified exceeding the Guidelines.

However, that does not end the matter. While exceeding the Guidelines

is justified, if the enhanced sentence is “unreasonable,” we are obligated to

reverse. The difficulty in determining what is “unreasonable” is evidenced by

our Supreme Court’s consideration of this issue in Commonwealth v. Walls,

926 A.2d 957 (Pa. 2007), when it stated:

Thus, under the Sentencing Code an appellate court is to exercise
its judgment in reviewing a sentence outside the sentencing
Guidelines to assess whether the sentencing court imposed a
sentence that is “unreasonable.” 42 Pa.C.S. § 9781(c), (d).

Yet, what makes a sentence “unreasonable” is not defined in the
statute. Generally speaking, “unreasonable” commonly connotes
a decision that is “irrational” or “not guided by sound judgment.”
The Random House Dictionary of the English Language, 2084 (2nd
ed.1987); see 1 Pa.C.S. § 1903 (words to be construed according
____________________________________________

12Contrary to Forshey’s argument, the trial court did not use the death to go
above the Guidelines. At the hearing when it imposed sentence, it stated:

[O]bviously the jury for whatever reason determined that you
were not going to be convicted of the drug delivery resulting in
death. They made a decision on that and we are going to respect
that decision, but the bottom line is that the conviction that they
did find you guilty of is the heroin mixed with fentanyl which the
testimony of record is that is a very deadly substance.

(See N.T. Sentencing, 5/03/20, at 32).

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J-A11045-23

to their common and approved usage). While a general
understanding of unreasonableness is helpful, in this context, it is
apparent that the General Assembly has intended the concept of
unreasonableness to be a fluid one, as exemplified by the four
factors set forth in Section 9781(d) to be considered in making
this determination. Indeed, based upon the very factors set out
in Section 9781(d), it is clear that the General Assembly intended
the concept of unreasonableness to be inherently a circumstance-
dependent concept that is flexible in understanding and lacking
precise definition.

Thus, given its nature, we decline to fashion any concrete rules as
to the unreasonableness inquiry for a sentence that falls outside
of applicable Guidelines under Section 9781(c)(3). We are of the
view, however, that the Legislature intended that considerations
found in Section 9721 inform appellate review for
unreasonableness. That is, while a sentence may be found to be
unreasonable after review of Section 9781(d)’s four statutory
factors, in addition a sentence may also be unreasonable if the
appellate court finds that the sentence was imposed without
express or implicit consideration by the sentencing court of the
general standards applicable to sentencing found in Section 9721,
i.e., the protection of the public; the gravity of the offense in
relation to the impact on the victim and the community; and the
rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b).
Moreover, even though the unreasonableness inquiry lacks precise
boundaries, we are confident that rejection of a sentencing court’s
imposition of sentence on unreasonableness grounds would occur
infrequently, whether the sentence is above or below the guideline
ranges, especially when the unreasonableness inquiry is
conducted using the proper standard of review [abuse of
discretion.]

Walls, 926 A.2d at 963–64.

In determining whether a sentencing court has abused its discretion, we

recognize that the trial court has broad discretion to which we must defer, but

“‘[b]road discretion’ does not mean unfettered or unchecked discretion. The

[sentencing] court’s choices must be consistent with the protection of the

public, the gravity of the offense, and the rehabilitative needs of the

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J-A11045-23

defendant.” Commonwealth v. Vega, 850 A.2d 1277, 1281 (Pa. Super.

2004) (internal citation and some internal quotation marks omitted).

Moreover, unlike in Walls, complicating this matter is that we are not

dealing with whether the trial court abused its discretion in going above the

Guidelines, but whether it abused its discretion in giving an enhanced

sentence of 15 to 30 years for the PWID conviction, which is approximately

seven-and-one-half times the standard range of 21-27 months for selling .2

grams of illegal drugs.

Sentencing above the Guidelines is rare. The Pennsylvania Sentencing

Commission reports that in 2019, the most recent year available online, out

of 86,858 criminal charges that resulted in a conviction, only two percent were

outside the aggravated range. In the same year, PWID only resulted in four

percent of the sentences that were above the aggravated range.13 There

appears to be no statistics online in the Commission Reports about how much

more time above the aggravated Guidelines was imposed.

The trial court also did not provide reasons why it chose to impose a

more than seven-and-one-half times more than the Guidelines standard range

that the Commission decided was appropriate to provide punishment to

protect the public and/or advance the rehabilitative needs of defendants. See

42 Pa. C. S. § 9721(b). To determine whether the trial court abused its

____________________________________________

13 https://pcs.la.psu.edu/research-data/interactive-data-portal/sentencing-
conformity-report/.

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J-A11045-23

discretion by imposing a sentence that is “unreasonable” is difficult because

what it involves is whether a line has been crossed and whether the line is not

marked either for us or the trial court. Nonetheless, the line has been crossed

here because the reasons given for the enhanced sentence are insufficient to

justify the sentence imposed for an offense for selling .2 grams of illegal drugs.

The trial court justified going above the Guidelines because this case

was compellingly different from the typical PWID since the heroin was mixed

with fentanyl which made the drug much more deadly so enhancement was

justified to protect the community. At the time of the offense, the Guidelines

did not treat fentanyl differently than any other drug, but effective June 1,

2018, for less than .1 gram of fentanyl, the offense gravity score went from

six to nine See 204 Pa. Code § 303.15 (7th. Ed., amend 4. supp.,

comprehensive offense listing). With Forshey’s prior record score of five and

the offense gravity score increasing from six to nine, the Guidelines now

provide for a sentence of 48 months which the Commission decided was an

appropriate sentence for selling that amount of fentanyl, much less than the

180 months minimum that the trial court imposed on the PWID conviction for

heroin mixed with fentanyl.

The trial court also justified going above the Guidelines because this

case was compellingly different from the typical PWID because Forshey has

been a complete and total failure at rehabilitation. Assuming that his failure

at rehabilitation is at all relevant to his PWID conviction, and that failure at

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J-A11045-23

rehabilitation is atypical, it is unreasonable to find that this failure is so

significant that it would justify such an enhanced sentence. While more time

in prison could possibly aid in his rehabilitation, nothing indicates that an

additional 177 months is necessary to accomplish that goal.

Finally, the trial court also relied on Forshey’s extensive criminal history,

with 35 convictions and 24 confinements, to justify an enhanced sentence.

We first note that those convictions are included in his prior record score of

five so care has to be taken that a double-count does not occur. Moreover,

nothing indicates that the enhanced sentence imposed here is necessary to

protect the public. He was paroled 23 times and received probation 15 times

from those convictions, which indicates that he did not engage in any violent

crime. Instead, the crimes mainly involved him selling small amounts of drugs

or engaging in “minor” crimes to support his habit. Apparently, the other

sentencing courts did not consider him a threat to the community. Instead,

what those convictions and the sentences do is lead to an inescapable

conclusion: Forshey is an intractable addict who is unable to kick the habit,

sells drugs and commits other minor crimes to support his addiction but is not

a serious threat to the community. While sentencing above the Guidelines

was justified, none of those reasons justified sentencing Forshey seven-and-

one-half times above the Guidelines.

Accordingly, we affirm the trial court’s order denying Forshey’s

objections to his convictions, but because we find the enhanced sentence was

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J-A11045-23

unreasonable, we reverse and remand to the trial court to resentence Forshey

and to provide reasons for the length of sentence it imposes above the

Guidelines.

Affirmed in part. Reversed in part. Remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2023

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