J-S14025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

KEVIN FAHEY

                             Appellant                     No. 1599 EDA 2014


                Appeal from the Judgment of Sentence May 14, 2013
                  In the Court of Common Pleas of Monroe County
                Criminal Division at No(s): CP-45-CR-0001309-2012


BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                    FILED APRIL 27, 2015

       Appellant, Kevin Fahey, appeals from the judgment of sentence

entered on May 14, 2013, following his jury trial convictions of three counts

of terroristic threats and one count of ethnic intimidation.1 We affirm.

       We summarize the facts and procedural history of this case as follows.

On June 2, 2012, Appellant made racially motivated comments to his

neighbor, on various occasions during the day, on Lakeside Drive in Penn

Estates    in    Monroe     County,     Pennsylvania.     On   July   30,   2012,   the

Commonwealth filed a bill of criminal information charging Appellant with

three counts each of terroristic threats and ethnic intimidation. Both the

Commonwealth and Appellant requested psychiatric evaluations of Appellant
____________________________________________


1
    18 Pa.C.S.A. §§ 2706(a)(1) and 2710(a), respectively.
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and he was determined to be competent to stand trial. Following a trial on

April 4, 2013, a jury found Appellant guilty of three counts of terroristic

threats and one count of ethnic intimidation.       On May 14, 2013, the trial

court sentenced Appellant to an aggregate term of imprisonment of 21 to 42

months. Appellant was ordered to undergo a drug and alcohol evaluation, as

well as a psychological evaluation.

       On May 21, 2013, Appellant filed a motion to reconsider his sentence,

alleging that it was excessive. The trial court denied relief by order dated

May 23, 2013. Appellant did not file a direct appeal. On January 27, 2014,

Appellant filed a pro se petition pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. On February 7, 2014, the trial court

appointed counsel who later filed an amended PCRA petition.        On May 5,

2014, after a hearing, the trial court entered an order reinstating Appellant’s

rights nunc pro tunc after determining that trial counsel was ineffective for

failing to file a direct appeal. This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

         I.     Whether the [l]ower [c]ourt abused its discretion at
                the time of [s]entencing in this matter.

         II.    Whether the lower [c]ourt erred by disallowing
                Appellant’s [c]ounsel to question a Commonwealth
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2
   Appellant filed a notice of appeal on May 27, 2014. On June 10, 2014, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 21, 2014.



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                witness regarding his prior guilty plea to a crimen falsi
                offense, notwithstanding the fact that the witness had
                withdrawn his plea prior to his testimony in the case
                at bar.

Appellant’s Brief at 6 (suggested answers omitted).

     In his first issue presented, Appellant contends that the trial court

abused its discretion during sentencing when it failed to consider mitigating

factors. In sum, Appellant argues:

        In this matter, Appellant was sentenced within the standard
        range of sentencing, but it is clear that there was a mental
        health component at play regarding the underlying offense.
        Prior to trial in this matter, the lower court granted
        [m]otions by both [] Appellant and [] the Commonwealth
        for mental health evaluations on Appellant. At sentencing,
        the court clearly felt that Appellant’s mental health played a
        part in his behavior, as evidenced by the fact that the court
        ordered that he undergo a comprehensive psychological
        examination and abide by all recommended treatment,
        including the taking of prescribed medications. Under those
        circumstances, Appellant contends that the sentence
        imposed in this matter represented an abuse of discretion,
        because it did not adequately take into consideration
        Appellant’s compromised mental health.

Id. at 12-13.

     Appellant is challenging the discretionary aspects of his sentence. This

Court has previously determined:

        Appellant challenges the discretionary aspects of sentencing
        for which there is no automatic right to appeal. This appeal
        is, therefore, more appropriately considered a petition for
        allowance of appeal. Two requirements must be met before
        a challenge to the judgment of sentence will be heard on
        the merits. First, the appellant must set forth in his or her
        brief a concise statement of matters relied upon for
        allowance of appeal with respect to the discretionary
        aspects of his [or her] sentence. Pa.R.A.P. 2119(f). Second,

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        he or she must show that there is a substantial question
        that the sentence imposed is not appropriate under the
        Sentencing Code. 42 Pa.C.S.A. § 9781(b).

        The determination of whether a particular case raises a
        substantial question is to be evaluated on a case-by-case
        basis. Generally, however, in order to establish that there is
        a substantial question, the appellant must show actions by
        the sentencing court inconsistent with the Sentencing Code
        or contrary to the fundamental norms underlying the
        sentencing process.

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014)

(citation and brackets omitted).

      Here, Appellant has complied with Rule 2119 as stated above;

however, he has failed to raise a substantial question. A claim that the trial

court failed to consider mitigating factors in fashioning sentence does not

generally raise a substantial question when the trial court imposes a

standard range sentence. See Commonwealth v. Rhoades, 8 A.3d 912,

918-919 n.12 (Pa. Super. 2010)(allegation that the sentencing court failed

to consider mitigating factors in imposing a standard range sentence

generally does not raise a substantial question for our review); compare

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (a

substantial question exists when a sentencing court imposes a sentence in

the aggravated range without considering mitigating factors.)        Here, as

Appellant concedes, he received a standard range sentence.          Thus, his

complaint that the trial court failed to consider mitigating factors in

fashioning his sentence fails to raise a substantial question.


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      Regardless, “[i]n reviewing a challenge to the discretionary aspects of

sentencing, we evaluate the court's decision under an abuse of discretion

standard.” Seagraves, 103 A.3d at 842 (citation omitted). In this matter,

the trial court specifically referenced the pre-sentence investigation report

prepared in this case before imposing sentence. N.T., 5/14/2013, at 2, 8.

Before sentencing, the trial court read portions of Appellant’s mental

evaluation into the record, wherein the examining doctor opined:

        [Appellant] appears to lack insight, however, into his
        actions and fails to accept responsibility for them. It is my
        opinion to a reasonable degree of psychological certainty
        that [Appellant] has a borderline personality with some
        overlay of antisocial behaviors. Care is essential in dealing
        with him in order to prevent any explosive behaviors and to
        prevent him from manipulation in therapeutic sessions. His
        denial of all issues will make it extremely difficult for him to
        accept responsibility for any negative interpersonal
        relationships.

Id. at 8-9.   “When, as here, the trial court has the benefit of a pre-sentence

report, we presume that the court was aware of relevant information

regarding the defendant's character and weighed those considerations along

with any mitigating factors.”       Seagraves, 103 A.3d at 842 (citation

omitted). Thus, we discern no abuse of discretion in sentencing Appellant.

Accordingly, Appellant’s first issue lacks merit.

      Next, Appellant argues that the trial court erred by prohibiting defense

counsel from questioning Commonwealth witness, Adel Mikheil, about his

prior guilty pleas to crimen falsi offenses, insurance fraud and theft,

committed in New Jersey. Appellant’s Brief at 13.

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       “Our standard of review over evidentiary rulings requires us to

determine whether the trial court abused its discretion.”   Commonwealth

v. Henkel, 938 A.2d 433, 440 (Pa. Super. 2007) (citation omitted).       “For

the purpose of attacking the credibility of any witness, evidence that the

witness has been convicted of a crime, whether by verdict or by plea of

guilty or nolo contendere, must be admitted if it involved dishonesty or false

statement.” Pa.R.E. 609. “Pa.R.E. 609(a) requires an actual conviction of a

crime involving dishonesty or false statement in order for a witness's

credibility to be attacked with evidence of the crime.” Commonwealth v.

Chmiel, 889 A.2d 501, 535 (Pa. 2005). “[T]he veracity of a witness may

not be impeached by prior arrests which have not led to convictions.” Id. at

534.

       Here, the witness testified that he entered a guilty plea to insurance

fraud and theft in New Jersey, subsequently withdrew his plea, and had not

been convicted at the time of this trial. N.T., 4/4/2013, at 44-45. At this

point, the trial court allowed a recess to “run a criminal history” on the

witness to verify the veracity of his statements. Id. at 46. Following the

recess, the trial court issued a curative instruction to the jury to disregard

information regarding crimen falsi crimes the witness allegedly committed as

“that information [was] striken from the record, [because the witness] has

not been convicted of those offenses in the State of New Jersey.” Id. at 47.

Appellant did not object to the issuance of the curative instruction.     The


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witness in this case withdrew his guilty plea in the New Jersey matter prior

to this trial, thus, charges were still pending and a New Jersey court had yet

to convict the witness. “Because there was no conviction, admission of this

evidence was properly barred to challenge the credibility of the witness.”

Chmiel, 889 A.2d at 535. Accordingly, we discern no abuse of discretion in

precluding defense counsel from questioning the witness about crimen falsi

charges that were pending, but had not resulted in convictions.        Hence,

Appellant’s second claim fails.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




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