HomeMy WebLinkAboutCP-21-CR-0000046-2014
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
MICHAEL A. KONETSCO : CP-21-CR-0000046-2014
OTN: T563689-0 :
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925(a)
Peck, J., December 10, 2015.
Following a jury trial from October 21, 2014 through October 24, 2014, Defendant
Michael A. Konetsco (hereinafter the “Defendant”) was convicted of the sole count of
Possession with Intent to Deliver a Schedule I Controlled Substance, Marijuana, an
ungraded felony. On November 25, 2014, Defendant was sentenced to pay the costs of
prosecution, a $100.00 fine, and to undergo imprisonment in the Cumberland County
Prison for not less than fourteen months, nor more than twenty-eight months, with four
days of credit for time served. Defendant has appealed his conviction, and this Court has
1
summarized the following list of errors from his Concise Statement of Errors
Complained of on Appeal:
1.The jury’s verdict was not supported by sufficient evidence.
2.The jury’s verdict was against the weight of the evidence.
3.The Court erred in allowing the marijuana in question to be entered into
evidence because it was fruit of the poisonous tree as a result of an unlawful
search and seizure by the Pennsylvania State Police.
4.The Court erred in sentencing Defendant to a term of imprisonment which
exceeds the standard range of the sentencing guidelines without putting the
reasons for doing so on the record or in the sentencing order.
1
The lengthy Concise Statement of Errors Complained of on Appeal are not stated in a clear and organized
manner. This Court, therefore, has attempted to compile the list of issues raised on appeal in an effort to clarify
the issues.
1
5.The Defendant has not received copies of the case “warrants, pictures and
2
motions… and all transcripts.”
This Court offers the following Opinion, pursuant to Pa. R.A.P. 1925(a), in
support of its decision.
FACTUAL AND PROCEDURAL HISTORY
The present matter concerns Defendant’s arrest and conviction for Possession with
Intent to Deliver a Schedule I Controlled Substance, Marijuana, an ungraded felony. On
December 13, 2013, the Pennsylvania State Police (hereinafter, “PSP”) were called to a
FedEx facility in Lower Swatara Township, Pennsylvania in response to a package that
3
had been deemed suspicious by a senior security specialist for FedEx. That FedEx
employee testified at trial that she pulled the package from the sorting line and alerted
PSP of her suspicions because the package was wrapped unusually (with black duct tape
instead of packing tape), because the package had a hand-written airway bill (which is
often used by FedEx customers attempting to send drugs because it allows the customer
to pay with cash without showing identification), and because the package was coming
4
from a “source state” (Texas). PSP responded to FedEx’s report of a suspicious package
by sending a canine unit, specifically Trooper Jon Mearkle and his canine Zigi, to the
5
FedEx facility to conduct a canine sniff. After following PSP protocol for a canine sniff,
6
Zigi alerted and indicated that the suspect parcel contained narcotics.
Based on Zigi’s indication that the package contained narcotics, a search warrant
7
was obtained by PSP. The subsequent search of the package revealed that it contained a
8
vegetable matter which field tested positive for marijuana. PSP then obtained an
2
Statement of Errors on Appeal, Paragraph 15.
3
Notes of Testimony, October 21-23, 2015 (hereinafter “N.T.”), at 64-65.
4
N.T. at 183-184.
5
N.T. at 65.
6
N.T. at 67, 71-72.
7
N.T. at 201-202, Commonwealth’s Exhibit Number 15.
8
N.T. at 202-204.
2
9
anticipatory search warrant and attempted to conduct a controlled delivery of the
package at the intended delivery address, which was 101 Texaco Road, Mechanicsburg,
10,11
Pennsylvania 17050.PSP Corporal Todd Rudy (hereinafter “Corporal Rudy”) went
undercover as a FedEx delivery person and delivered the package to the 101 Texaco
12
Road address. Corporal Rudy identified the Defendant as the person to whom he
delivered the package in question, and Corporal Rudy further testified that the Defendant
13
said he had been waiting for this package to arrive. Pursuant to the terms of the
anticipatory search warrant, once the package was accepted and taken into the 101
14
Texaco Road property, PSP executed a search warrant on the property.
While PSP conducted its search, the Defendant was informed of his Miranda
15
rights, which he acknowledged before he was questioned. During the subsequent
questioning, the Defendant first indicated that he was expecting the package to contain
16
guacamole from his friend Jo in Texas. When a PSP officer pointed out that guacamole
must be refrigerated and this package was clearly not refrigerated, the Defendant changed
his statement and said that he was expecting to receive high-end toffee and chocolate
17
from Jo in Texas, which he would use to make cheesecakes. The Defendant told PSP
that he did not know Jo’s last name, but that he had sent a $4,100 money order from the
Walmart on the Carlisle Pike just a few days prior in order to pay Jo for the toffee and
18
chocolate. When the Defendant was informed that the package had been sent by a John
19
Roberts in Austin, Texas, and not from “Jo,” the Defendant had no answer. Further
investigation by PSP revealed that the $4,100 money order was sent from Defendant to a
9
N.T. at 82-83, 205, Commonwealth’s Exhibit 5.
10
N.T. at 204.
11
The package was addressed to Andre’s Specialty Cheesecakes, 101 Texaco Road, Mechanicsburg, Pennsylvania
17050. PSP’s research indicated that no business named Andre’s Specialty Cheesecakes was associated with the
101 Texaco Road address. N.T. at 207.
12
N.T. at 82.
13
N.T. at 84.
14
N.T. at 86-87.
15
N.T. at 215.
16
N.T. at 215.
17
N.T. at 215.
18
N.T. at 216.
19
N.T. at 217-218.
3
20
man named Ron Potter in Austin, Texas, not to “Jo.” In summary, a money order was
sent from Defendant, who resides at 101 Texaco Road in Mechanicsburg, to Ron Potter
in Austin, Texas on December 9, 2013, and the package containing marijuana was sent to
Andre’s Specialty Cheesecakes, at 101 Texaco Road in Mechanicsburg, from John
Roberts in Austin, Texas on December 12, 2013.
The PSP search of the 101 Texaco Road property resulted in the seizure of the
21
marijuana contained in the original suspicious package, empty pill bottles in various
22232425
sizes, an Ohaus beam scale, two smoking pipes, the Defendant’s cell phone, and
2627
various other items. The bag of marijuana was sent to PSP for further testing, which
28
confirmed that the bag contained 397 grams of Marijuana, Schedule I. The scales, pill
29
bottles, and smoking pipes were not sent for further forensic analysis. A search warrant
for the contents of the cell phone was obtained, and its data was analyzed, which PSP
30
found to be consistent with narcotics trafficking. Specifically, testimony was given that
the Defendant seemingly used the term “cheesecake” as code for narcotics in text
31
messages.
The Commonwealth also presented the expert testimony of Detective Jeff Mohn
(hereinafter “Detective Mohn”), who was recognized by the Court as an expert in the
32
field of drug trafficking. Detective Mohn testified that, in his opinion, the Defendant
20
N.T. at 218, Commonwealth’s Exhibit Number 17.
21
N.T. at 214.
22
N.T. at 213. It should be noted, however, that the search revealed three shipping bag’s worth of empty pill
bottles, but only a representative sample of the empty pill bottles was actually seized by the PSP.
23
N.T. at 223.
24
N.T. at 223.
25
N.T. at 223.
26
N.T. at 223.
27
Testimony was given that there was a delay of six months before the marijuana was sent to the lab for further
analysis, but that the bag remained in the locked evidence room at the PSP barracks the entire time. N.T. at 229.
Additional testimony indicated that the lab analysis would not have been affected by the delay. N.T. at 171.
28
N.T. at 167.
29
N.T. at 230-231.
30
N.T. at 224-228.
31
N.T. at 227-228.
32
N.T. at 257.
4
33
possessed the marijuana in question with the intent to deliver the same. In reaching this
opinion, Detective Mohn testified that he considered the following factors: the method in
which the marijuana was sent to the Defendant, including the fictitious names used for
34
the sender and recipient of the package, the amount of marijuana which was contained
353637
in the package, the presence of scales and empty pill bottles at the Defendant’s
38
residence, the use of a money order to pay a sender in Texas, and the use of coded text
39
messages.
Although the Defendant did not testify in his own defense, the Defendant called
witnesses and presented evidence on his behalf. The thrust of Defendant’s defense was
that he did not know that the box contained marijuana, and that he was expecting the box
to contain ingredients for his legitimate cheesecake business. To prove the legitimacy of
his cheesecake business, Defendant called friends and family as witnesses to testify about
40
his cheesecakes, he presented a freshly baked cheesecake, he submitted menus and
41
business cards from his cheesecake business into evidence, and he provided blueprints
42
for his unique cheesecake press.
Based on the foregoing evidence, the jury found the Defendant guilty of
Possession with Intent to Deliver a Schedule I Controlled Substance, Marijuana. This
appeal followed.
DISCUSSION
Sufficiency of the Evidence
On appeal, the Defendant challenges whether the evidence presented by the
Commonwealth was sufficient to sustain his conviction for possession with intent to
33
N.T at 293.
34
N.T. at 259-263, 276-277.
35
N.T. at 264-267.
36
N.T. at 269-271.
37
N.T. at 268-269.
38
N.T. at 273-274, 281-285.
39
N.T. at 277-281.
40
N.T. at 398-999, Defendant’s Exhibit Number 62.
41
N.T. at 475, Defendant’s Exhibit Number 67.
42
N.T. at 471-471, Defendant’s Exhibit Number 66.
5
deliver a controlled substance. The standard of review for a challenge to the sufficiency
of the evidence is as follows:
In evaluating a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt… This
standard is equally applicable to cases where the evidence is circumstantial
rather than direct so long as the combination of evidence links the accused
to the crime beyond a reasonable doubt. Unless the evidence presented at
trial is “so weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances,” the verdict should
not be disturbed on appeal.
Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa. Super. 2008)(internal citations
omitted). Specifically, in regards to a conviction for possession with intent to deliver,
\[t\]he Commonwealth must prove both the possession of the controlled
substance and the intent to deliver the controlled substance. It is well settled
that all the facts and circumstances surrounding possession are relevant in
making a determination of whether contraband was possessed with intent to
deliver.
In Pennsylvania, the intent to deliver may be inferred from possession of a
large quantity of controlled substance.
Commonwealth v. Lee, 956 A.2d at 1028 (quoting Commonwealth v. Brown, 904 A.2d
925, 931-932 (Pa. Super. 2006)). Furthermore, “\[w\]hen determining whether there was
sufficient evidence to sustain a charge of possession with intent to deliver… the
commonwealth may establish the essential elements of the crime by wholly
circumstantial evidence.” Commonwealth v. Williams, 615 A.2d 416, 418 (Pa. Super.
1992)(internal citations omitted). The fact finder is free to believe all, part, or none of the
evidence presented at trial. Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super.
2011)(internal citations omitted). Additionally, the jury is not obligated to accept a
defendant’s evidence. Commonwealth v. Morales, 91 A.3d 80, 90 (Pa. 2014).
In the present case, Defendant disputes that he knowingly possessed the marijuana
in question. Defendant argues that he only accepted the package containing the marijuana
6
because he expected it to contain baking supplies. To support this argument, Defendant
points to the fact that he had not even opened the package by the time that PSP executed
the search warrant, seized the marijuana, and arrested him. However, the evidence
presented by the Commonwealth belies the Defendant’s argument.
Testimony was given that the Defendant originally claimed that he expected the
package to contain guacamole, but that he quickly changed his story when a PSP officer
43
pointed out that guacamole needed to be refrigerated. Further testimony was given that
the $4,100 money order that Defendant sent to Ron Potter in Austin, Texas is more
consistent with the price of approximately one pound of marijuana than with the price of
44
even the most expensive toffee and chocolate. Additionally, testimony was given that
the Defendant told the PSP Corporal disguised as a FedEx delivery person that he had
45
been waiting for the package’s arrival. Such evidence, when viewed in the light most
favorable to the Commonwealth as verdict-winner, as is required on appeal, was
sufficient for the Jury to find that the Defendant knowingly possessed a controlled
substance, marijuana.
Additionally, the evidence presented at trial sufficiently established that the
Defendant possessed the marijuana with the intent to deliver. As noted above, the intent
to deliver a controlled substance can be inferred in Pennsylvania from the possession of a
large quantity of a controlled substance. Commonwealth v. Lee, 956 A.2d at 1028. In the
present case, the Defendant possessed 397 grams of marijuana, which is slightly less than
46
a pound. The Commonwealth provided expert testimony that such an amount of
47
marijuana is not common for personal use. Instead, the expert testimony established that
such an amount is more commonly broken down for sale and delivery in smaller
48
quantities. Further, the items collected from the Defendant’s home by PSP and entered
into evidence support that the marijuana was possessed with the intent to deliver. Expert
43
N.T. at 215.
44
N.T. at 228.
45
N.T. at 84.
46
N.T. at 167.
47
N.T. at 265-266.
48
N.T. at 269-270.
7
testimony was given that the triple beam scale seized from the Defendant’s home, as well
as the numerous empty pill bottles without labels on them, would be useful for breaking
49
the larger amount of marijuana down into smaller quantities for sale and delivery.
Additionally, testimony was given that the contents of the Defendant’s cell phone are
50
consistent with narcotics trafficking. Thus, when viewing all of the evidence in the light
most favorable to the Commonwealth, sufficient evidence was presented for the Jury to
conclude beyond a reasonable doubt that the Defendant had the requisite intent to deliver.
Accordingly, viewing the evidence in total, sufficient evidence was presented at trial to
establish each of the elements of possession with intent to deliver a controlled substance,
marijuana, beyond a reasonable doubt.
Weight of the Evidence – Chain of Custody
Defendant’s next argument on appeal is that the chain of custody of the marijuana
51
in question was broken. Defendant focuses on the fact that the marijuana was not sent to
the PSP forensic lab for testing until six months after it was seized, which Defendant
believes taints the results of the lab testing. The Pennsylvania Superior Court has noted
that challenges to the chain of custody go to the weight of the evidence. Commonwealth
v. Feliciano, 67 A.3d 19, 29 (Pa. Super. 2013)(“Appellant incorrectly argues this issue as
though it were related to the admissibility of the evidence. Gaps in the chain of custody…
go to the weight of the evidence and not its admissibility.”)(internal citations omitted).
Importantly, under Pennsylvania Rule of Criminal Procedure 607, challenges to
the weight of the evidence must first be raised before the trial court in either a motion for
new trial prior to sentencing or in a post-trial motion. Pa. R.Crim.P. 607(A). The
Pennsylvania Superior Court has repeatedly upheld the rule that weight of the evidence
claims cannot be raised for the first time on appeal, and that such arguments are waived if
not brought before the trial court. See Commonwealth v. Butler, 729 A.2d 1134, 1140
(Pa. Super. 1999); Commonwealth v. Lewis, 45 A.3d 405, 410 (Pa. Super. 2012). In the
49
N.T. at 267-271.
50
N.T. at 224-228.
51
Defendant’s Statement of Errors repeatedly states that the “chain of command” was broken, but this Court
assumes that he means the chain of custody.
8
present case, Defendant failed to raise his challenge to the weight of the evidence before
this Court. Therefore, he has waived this argument.
Nevertheless, this Court will briefly review the evidence submitted regarding the
chain of custody in the event that the reviewing Court decides to consider the merits of
this argument. When reviewing weight of the evidence claims on appeal, the standard of
review is as follows:
The weight of the evidence is exclusively for the finder of fact who is free
to believe all, part, or none of the evidence and to determine the credibility
of the witnesses. An appellate court cannot substitute its judgment for that
of the finder of fact. Thus, we may only reverse the jury’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Gooding, 818 A.2d 546, 552 (Pa. Super. 2003)(quoting
Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001)).
In regards to challenges to the chain of custody, the Superior Court has noted that,
There is no rule requiring the prosecution to produce as witnesses all
persons who were in a position to come into contact with the article sought
to be introduced in evidence. Physical evidence may be properly admitted
despite gaps in testimony regarding custody.
Commonwealth v. Feliciano, 67 A.3d at 29.
In the present case, the Commonwealth provided testimony from Trooper Jason
Reed and PSP forensic examiner Albert Lattanzi, Jr. (hereinafter “Lattanzi”) regarding
the chain of custody. Trooper Reed testified to the custody of the marijuana from when it
was taken from the FedEx facility until the time it was placed into the evidence locker at
52
PSP. Trooper Reed’s property records concerning the marijuana were submitted as
53
evidence at trial. Lattanzi testified that the bag was properly sealed at the time that he
54
received it for forensic examination, and that he re-sealed the bag following his
55
examination, placing an alphanumeric identifier, the date, and his initials on the same.
Lattanzi testified that the bag still contained his signature and the alphanumeric code at
52
N.T. at 201-202, 229.
53
Commonwealth’s Exhibit Number 13.
54
N.T. at 161-162.
55
N.T. at 163.
9
56
trial. Furthermore, Lattanzi testified that having evidence such as marijuana sitting in an
evidence locker for six months would do nothing to affect the results of the
57
examination. Based on the above, the Jury was free to find that the weight of the
evidence established the chain of custody of the marijuana.
Weight of the Evidence – Credibility
Defendant next argues that PSP fabricated evidence and that PSP officers have
perjured themselves. These arguments also go to the weight of the evidence since they
address the credibility of the witnesses.
As noted above, the jury, as the finder of fact, is the sole judge of the credibility of
witnesses at trial. Commonwealth v. Gooding, supra. In finding the Defendant guilty, the
jury found the Commonwealth’s witnesses and theory of the case to be more credible
than the Defendant’s. The Court is not in a position to substitute its judgment on the
credibility of the evidence for that of the jury unless the jury’s decision shocks the
Court’s sense of justice. In the present case, based on the evidence presented at trial, the
jury’s verdict did not shock the Court’s sense of justice.
Admissibility of Evidence
Defendant next argues on appeal that this Court erred in allowing the marijuana in
question into evidence. Defendant argues that PSP unlawfully seized and searched the
package in question because canine sniffs are not reliable and, thus, cannot serve as the
probable cause required to obtain a search warrant. This argument challenges an
evidentiary ruling of the Court. When a party appeals an evidentiary ruling of the trial
court, the following standard of review applies:
On a challenge to a trial court’s evidentiary ruling, our standard of review is
one of deference. The admissibility of evidence is solely within the
discretion of the trial court and will be reversed only if the trial court has
abused its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
or prejudice, ill-will or partiality, as shown by the evidence of record.
56
N.T. at 163.
57
N.T. at 171.
10
Commonwealth v. Hernandez, 39 A.3d 406, 4ll (Pa. Super. 2012 (quoting
Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004)).
On appeal here, Defendant argues that the search warrant allowing the police to
search the package after it was seized from the FedEx facility was issued without
probable cause. Specifically, Defendant challenges the reliability of the canine sniff
performed by Zigi. Defendant states that canine sniffs have been deemed to be unreliable
by the United States Supreme Court. Defendant fails to cite to any case law for this
proposition. As a result of the supposed unreliability of the canine sniff, and subsequent
search warrant, Defendant argues that the marijuana contained in that same package that
was later seized from his residence should have been excluded from evidence at trial
under the fruit of the poisonous tree doctrine. While the fruit of the poisonous tree
doctrine does bar admission of evidence which is the result of an illegal search and
seizure, the search and seizure of the package from the FedEx facility was lawful.
Despite Defendant’s claims to the contrary, this Court found no case law from the
United States Supreme Court which supports the position that canine sniffs are so
unreliable as to bar their use in obtaining a search warrant. A recent case concerning
canine sniffs decided by the United States Supreme Court, Illinois v. Caballes, upheld the
canine sniff of a lawfully-stopped vehicle based on the sui generis nature of the sniff,
which “discloses only the presence or absence of narcotics, a contraband item.” Illinois v.
Caballes, 543 U.S. 405, 409 (2005)(internal citations omitted). In Illinois v. Caballes, the
Supreme Court held that the canine sniff was lawful despite the defendant’s objection
that such sniffs were unreliable. Id. (“Although respondent argues that the error rates,
particularly the existence of false positives, call into question the premise that drug-
detection dogs alert only to contraband, the record contains no evidence or findings that
support his argument.”).
Likewise, Pennsylvania’s jurisprudence allows law enforcement to utilize canine
sniffs to detect the presence of narcotics. In Commonwealth v. Johnston, the
Pennsylvania Supreme Court held that a canine sniff may be used to detect the presence
11
of narcotics where the police are able to articulate reasonable suspicion for believing
drugs are present, and where the police are lawfully present in the place where the canine
sniff is conducted. Commonwealth v. Johnston, 530 A.2d 74, 79 (Pa. 1987).
In Commonwealth v. Shickler, as in the case at bar, the defendant argued that the
marijuana and other evidence seized from his apartment should be inadmissible because
it was seized on a search warrant based on an unreliable canine sniff and therefore was
not supported by probable cause. Commonwealth v. Shickler, 679 A.2d 1291, 1292 (Pa.
Super. 1996). The Superior Court, citing Johnston, supra, rejected the defendant’s
argument that the Commonwealth failed to prove the reliability of the canine in question.
Id. at 1293. The Superior Court held that the Commonwealth met is burden of proving
the reliability of the canine by including in the affidavit the fact that the canine was
certified as a narcotics detection dog since March of 1992, and that marijuana was one of
the narcotics that the canine was certified in detecting. Id. The Superior Court stated that,
to require more would place ‘unreasonable burdens on the police’… ‘unless
it is established, as it has not been on this record, that trained narcotics
detection dogs are less than 51% accurate, there is no need for a more
detailed account of a narcotics detection dog’s pedigree.’
Id. (quoting Commonwealth v. Johnston, 530 A.2d at 82).
In the present case, PSP were lawfully present at the FedEx facility after being
called to the facility by FedEx regarding the suspicious package. PSP had reasonable
suspicion to conduct the canine sniff based on the characteristics of the package,
including the unusual packaging (the use of heavy duct tape instead of packing tape), the
fact that the package was sent from a source state, and the fact that the package had a
hand-written airway bill (allowing the sender to pay cash without showing identification).
Thus, the canine sniff of the package was lawful.
Furthermore, once Zigi indicated that the package contained narcotics, PSP used
this information, as well as other information they gathered, including the fact that both
the return address and the recipient’s address on the package were fraudulent, to obtain a
search warrant for the package. The search warrant included the fact that Trooper
12
Mearkle and Zigi have been a certified team since 2013, and that Zigi is certified in the
58
detection of marijuana, among other narcotics. Based on the foregoing, a search warrant
was issued for the suspicious package, and the marijuana was found. Because the initial
canine sniff was lawful, and the search warrant for the box was supported by probable
cause, the marijuana evidence was properly admitted at trial.
Sentence
Defendant next challenges the sentence imposed by this Court. Defendant argues
that the Court sentenced him above the standard range without putting the reason(s) for
59
doing so on the record or in the sentencing Order. As set forth below, this Court
sentenced the Defendant within the standard range of the Sentencing Guidelines. As
such, the Defendant’s claims challenge the discretionary aspects of sentencing. See
Commonwealth v. Dunphy, 20 A.3d 1215 (Pa. Super. 2011); Commonwealth v.
Anderson, 830 A.2d 1013 (Pa. Super 2003). Challenges to the discretionary aspects of
sentencing do not entitle an Appellant to an appeal as of right. Commonwealth v. Sierra,
752 A.2d 910 (Pa. Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue, the reviewing Court must conduct a four-part analysis to determine (1)
if Defendant filed a timely notice of appeal, (2) whether the issue was preserved in a
motion to reconsider sentence, (3) whether Defendant’s brief has a fatal defect, and (4)
whether there is a substantial question that the sentence appealed from is not appropriate
under the Sentencing Code. Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006).
Generally, an “allegation that a sentencing court failed to consider or did not adequately
consider certain factors does not raise a substantial question that the sentence was
inappropriate.” Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa. Super. 1995).
58
Commonwealth’s Exhibit Number 1.
59
Post-sentence Defendant challenged in a motion for reconsideration of sentence that this Court failed to
consider the fact that Defendant is disabled, that he is currently serving a Federal sentence, and that the bottom of
the standard range is six months. See Motion for Reconsideration of Sentence and Request for New Trial. While
Defendant does not make exactly the same argument on appeal regarding sentencing, the Court notes that
Defendant presented the fact of his disability at trial and at sentencing. Sentencing Notes of Testimony, p. 10.
Further, the Court was aware that Defendant was incarcerated on a Federal sentence for eighteen months.
Sentencing Notes of Testimony, p. 9.
13
This Court finds that the Defendant has not raised a substantial question and that
his appeal as to his sentence should therefore be waived. Defendant failed to include in
his appeal any reference to a specific provision of the Sentencing Code that the Court
violated or any reasonable argument that this court’s sentence was contrary to the
fundamental norms which underlie the sentencing process. See Sierra, supra, at 912-913.
Nevertheless, this Court will address the discretionary aspect of Defendant’s sentence
should the reviewing Court find the issue has not been waived.
In general, “\[s\]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005). A sentence
constitutes an abuse of discretion if:
the sentence imposed . . . either exceed\[s\] the statutory limits
or \[is\] manifestly excessive. In this context, an abuse of
discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the
record, that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Id. “In determining whether a sentence is manifestly excessive, the appellate court must
give great weight to the sentencing court's discretion, as he or she is in the best position
to measure factors such as the nature of the crime, the defendant's character, and the
defendant's display of remorse, defiance, or indifference.” Commonwealth v. Mouzon,
828 A.2d 1126, 1128 (Pa. Super. 2003). Accordingly, the sentencing court “has broad
discretion in choosing the range of permissible confinements which best suits a particular
defendant and the circumstances surrounding his crime.” Commonwealth v. Boyer, 856
A.2d 149, 153 (Pa. Super. 2004). “In setting sentence, a court has discretion . . . to run the
sentence concurrently with or consecutively to other sentences being imposed.” Mouzon,
828 A.2d at 1130.
In the present case, Defendant was sentenced to fourteen to twenty-eight months
imprisonment, with four days of credit for time served, to run consecutive to any other
14
sentence. At the sentencing hearing on November 25, 2014, this Court noted on the
60
record that it was in receipt of the presentence investigation report. A reviewing court
can thus presume that this Court considered the relevant facts when sentencing the
Defendant. See Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005). The Court
noted that the standard range of the sentencing guidelines was between six and sixteen
61
months. As the minimum of the sentence imposed was within the standard range, it falls
far short of being manifestly excessive. Furthermore, the sentence imposed by the Court
is within the statutory minimum and maximum. Therefore, this Court did not abuse its
discretion in sentencing the Defendant to fourteen to twenty-eight months of
imprisonment, and the Defendant’s sentence should be upheld on appeal.
Copies of Case Documents
Finally, the Defendant claims in his statement of errors that Defendant has not
received any copies of Court documents. The Defendant was initially represented by
62
counsel, but was allowed to proceed pro se upon Defendant’s request and following the
Court colloquy of Defendant. Defendant then represented himself through trial.
Defendant received all court documents that he requested as noted in a letter from the
Clerk of Court’s Office to the Defendant (in the Clerk of Court’s official file), dated
July 23, 2015. The Court further notes that Defendant has paid for and received various
Court documents he requested. See Notes of Transcript, , Motion for Dismissal of All
Charges – Rule 600, p. 2 (where Defendant notes he received a copy of a Court Order).
Nevertheless, in recognition that the Defendant is incarcerated and now proceeding in
forma pauperis (see Order of Court of November 6, 2014), this Court is ordering by
separate Order of Court on today’s date that the Clerk of Court’s office send another
copy of the Court filings of record, to include copies of any paper exhibits admitted at
trial, to date, to the Defendant. The Court’s reporter shall also send a copy of all
transcripts of the case completed to date to the Defendant.
60
Sentencing Notes of Testimony, November 25, 2014, at 2.
61
Sentencing Notes of Testimony, November 25, 2014, at 8.
62
See Order of Court vacating appointment of counsel of May 1, 2014.
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CONCLUSION
In sum, the verdict was supported by sufficient evidence, the verdict was
supported by the weight of the evidence, the Court properly admitted the marijuana into
evidence, and the Court did not abuse its discretion in sentencing the Defendant.
Therefore, the issues the Defendant has raised on appeal are all without merit and the
Defendant’s conviction and sentence should be upheld.
BY THE COURT,
___________________________
Christylee L. Peck, J.
Matthew P. Smith, Esq., Esq.
Chief Deputy District Attorney
Michael A. Konetsco
#70087-067 Unit H –A
Federal Medical Center
Devens P.O. Box 879
Ayer, MA 01432
Defendant
16