J-S83022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DASHAWN L. SMITH                           :
                                               :
                      Appellant                :   No. 116 EDA 2017

           Appeal from the Judgment of Sentence December 14, 2016
    In the Court of Common Pleas of Montgomery County Criminal Division at
                       No(s): CP-46-CR-0000745-2016,
              CP-46-CR-0000753-2016, CP-46-CR-0005110-2013


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                                  FILED APRIL 09, 2018

        Appellant, Dashawn L. Smith, appeals from the judgment of sentence,

in three separate criminal matters,1 entered on December 14, 2016. Upon

review, we affirm.
____________________________________________


1    As noted by the trial court:

        First, [Appellant] appeals from his judgment of sentence[]
        entered on December 14, 2016, at docket CP-46-CR-005110-
        2013 (“5110-2013”), imposed following a stipulated non-jury
        trial on July 8, 2016, where he was convicted of persons not to
        possess firearms and possession with intent to deliver [a
        controlled substance (“PWID”)]. [18 Pa.C.S.A. § 6105 and 35
        P.S. § 780-113(a)(30), respectively.]     [Appellant] has also
        appealed from his judgment of sentence entered on December
        14, 2016, at docket CP-46-CR-0000753-2016 (“753-2016”),
        imposed following a stipulated non-jury trial on September 26,
        2016, at which he was found guilty [PWID], criminal conspiracy,
        resisting arrest[,] and recklessly endangering another person
        [(“REAP”)]. [35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, 18
(Footnote Continued Next Page)
J-S83022-17



      We briefly set forth the facts and procedural history of these cases as

follows.    At docket 5110-2013, while on parole for an unrelated PWID

conviction, Appellant violated several provisions of his parole in June of

2013, including missing curfew, testing positive twice              for controlled

substances, and giving his parole officer conflicting excuses for the alleged

misconduct.     Additionally, when going through the metal detector at the

parole office, Appellant’s parole officer saw Appellant with a cellular

telephone and a stack of currency, despite the fact that Appellant had been

unemployed for the prior seven months. Appellant’s parole officer and the

officer’s supervisor searched Appellant’s cellular telephone and found

incriminating evidence, including text messages indicating Appellant was

selling drugs and other text messages discussing Appellant’s positive drug

tests. Appellant was detained. In a search incident to that detention, the

parole agents recovered $460.00 from Appellant’s person, which Appellant

attributed to selling DVDs or t-shirts.         A subsequent search of Appellant’s

apartment, on June 19, 2013, uncovered 932 individual baggies of heroin, a


(Footnote Continued) _______________________

      Pa.C.S.A. § 5104, and 18 Pa.C.S.A. § 2705, respectively.]
      Finally, [Appellant] has appealed from his judgment of sentence
      entered on December 14, 2016, at docket CP-46-CR-0000745-
      2016 (“745-2016”), imposed following his entry of a guilty plea
      on the same date to criminal trespass[, 18 Pa.C.S.A. § 3503].

Trial Court Opinion, 3/29/2017, at 2-3 (footnotes incorporated). However,
this appeal only addresses issues related to the first two cases, 5110-2013
and 753-2016, as set forth above.



                                          -2-
J-S83022-17



digital scale, unused baggies, and an unloaded .45 caliber handgun under

the mattress in the bedroom belonging to Appellant. Prior to trial, on June

15, 2016, the trial court held a suppression hearing and denied Appellant

relief. On July 8, 2016, following a stipulated non-jury trial, Appellant was

convicted of persons not to possess a firearm and PWID. On December 14,

2016, the trial court sentenced Appellant to six years and three months to

14 years of imprisonment.

      At docket 753-2016, police saw Appellant enter an apartment building

located at 3 West Fourth Street in Montgomery County, Pennsylvania on

December 17, 2015.     They saw Appellant and a woman later identified as

Appellant’s girlfriend, Melissa Griffin, enter the building together.   At the

time, there was an active, outstanding warrant for Appellant’s arrest and one

of the investigating officers knew Appellant carried a firearm in the past and

believed he may be armed. Appellant eventually left the building alone, saw

the police when they approached him, and fled.       While fleeing, Appellant

discarded a cellular telephone and 14 individual bags of heroin.        Police

arrested Appellant and applied for a search warrant for the apartment at 3

West Fourth Street.   Before obtaining a search warrant, the officers decided

to secure the apartment because Griffin was still inside and could destroy

evidence. Police announced their presence, opened the unlocked front door,

and Griffin came out of one of the bedrooms with her hands up. Police then

conducted a protective sweep of the apartment, only looking in places where

a person could hide. In doing so, police observed three cellular telephones

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J-S83022-17



and a stack of money in one room. In another bedroom, they saw items of

drug paraphernalia. All of these items were in plain view and police did not

confiscate them.         Instead, they awaited the search warrant for the

apartment.     While in police custody, Appellant asked why the police were

searching the residence at 3 West Fourth Street when he lived at 416 Vine

Street.   Thereafter, the police applied for a search warrant for 416 Vine

Street.   While executing the search warrants, police recovered over 1,200

individually packaged bags of heroin totaling 24.5 grams. On September 26,

2016, the trial court held a suppression hearing and denied Appellant relief.

Appellant proceeded directly to a stipulated non-jury trial wherein he was

convicted of the aforementioned charges. On December 14, 2016, the trial

court sentenced Appellant to 27 months to six years of imprisonment and

imposed this sentence consecutive to the sentence at docket number 5110-

2013. A timely appeal followed.2
____________________________________________


2   As the trial court noted, and appellate counsel concedes on appeal,
counsel for Appellant filed a timely single notice of appeal challenging the
judgment of sentence at all three docket numbers on December 28, 2016.
See Appellant’s Brief at 14; see also Trial Court Opinion, 3/29/2017, at 1-2.
Generally, taking one appeal from separate judgments is not acceptable
practice and is discouraged. See Dong Yuan Chen v. Saidi, 100 A.3d 587,
589 n.1 (Pa. Super. 2014), citing Pa.R.A.P. 341, Note and Pa.R.A.P. 512,
Note. However, we have overlooked such procedural error when the trial
court has addressed the issues pertaining to each order. Id. Moreover, as
discussed later, because Appellant challenges the trial court’s imposition of
his sentence at docket 753-2016 consecutive to the sentence imposed at
docket number 5110-2013, the issues raised on appeal overlap. Each
appeal also specifically challenges suppression. Had Appellant filed separate
notices of appeal, this Court could have sua sponte ordered consolidation for
(Footnote Continued Next Page)


                                           -4-
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      On appeal, Appellant presents the following issues for our review:

      1. [At docket 5110-2013, d]id [Appellant’s parole agent] have
         reasonable suspicion to engage in a warrantless confiscation
         and search of Appellant’s cellphone pursuant to 61 Pa.C.S.A.
         [§] 6153?

      2. Based on the United States and Pennsylvania Constitutions,
         the trial court erred in denying the suppression of all evidence
         recovered from the properties located at 3 West Street and
         416 Vine Street [at docket 753-2016?]3

      3. Whether the trial court erred in finding that the prohibition
         against nighttime warrants applied?

      4. Whether the trial court erred in sentencing Appellant to
         consecutive sentences under the circumstances?

Appellant’s Brief at 11.

      In his first issue presented, with regard to docket 5110-2013,

Appellant claims that the trial court erred by denying suppression of


(Footnote Continued) _______________________

appellate review.      See Pa.R.A.P. 513 (“…where the same question is
involved in two or more appeals in different cases, the appellate court may,
in its discretion, order them to be argued together in all particulars as if but
a single appeal.) After receiving the notices of appeal, on January 6, 2017,
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, raising issues related to docket numbers 5110-2013 and 753-2016.
The trial court issued a single opinion pursuant to Pa.R.A.P. 1925(a) on
March 29, 2017, addressing all of Appellant’s issues related to both cases.
For all of these reasons we will overlook the procedural misstep of filing a
single notice of appeal.

3 Appellant’s statement of questions involved does not correspond with his
subsequent argument. To avoid confusion, we have provided Appellant’s
second issue as set forth in the argument section of his appellate brief. See
Appellant’s Brief at 30 (complete capitalization omitted).



                                          -5-
J-S83022-17



evidence recovered from his cellphone and residence upon finding violations

of the terms of his parole. Appellant’s Brief at 19-29.           More specifically,

Appellant claims that once his parole agent witnessed a curfew violation and

received    confirmation   that   Appellant   tested   positive     for     controlled

substances, the investigation into the violations should have concluded. Id.

at 20.     “Thus, Appellant asserts that two positive urines and a curfew

violation, both of which were confirmed, would not give the parole agents

the right to seize, and search his cellphone or his residence at that time

because the two violations were no longer suspicions and had been

confirmed prior to the search of the phone.” Id. at 27. As such, Appellant

argues that the subsequent search of his cellular phone and residence were

illegal and the evidence obtained required suppression.

     Our standard of review for       challenges       to   the           denial    of

a suppression motion is as follows:

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



                                      -6-
J-S83022-17


       the conclusions of law of the courts below are subject to our
       plenary review.

Commonwealth v. Haslam, 138 A.3d 680, 685–686 (Pa. Super. 2016)

(citation omitted).

       Upon review of the trial court opinion, the parties’ briefs, the facts of

this case, and the applicable law, we conclude that the trial court’s factual

findings in denying Appellant’s suppression claim are supported by the

record.    The trial court first recognized that because Appellant was on

parole, he had a diminished expectation of privacy and parole officers need

only a reasonable suspicion that a parolee is violating the law in order to

conduct a search of the parolee’s person or property.4 Trial Court Opinion,

3/31/2017, at 7-8. The trial court considered the statutory factors set forth

at 61 Pa.C.S.A. § 6153 and determined the parole agent in this matter had

the requisite reasonable suspicion to conduct the subsequent searches. Id.

at 8-9. The trial court found that the parole agent knew Appellant’s criminal

history and was supervising him for a prior PWID conviction.          Id. at 9.

When Appellant missed curfew, he provided conflicting statements about his

____________________________________________


4  Appellant relies upon the United States Supreme Court decision Riley v.
California, 134 S. Ct. 2473 (2014) for the proposition that “there is an
intimate expectation of privacy in the cellphone and it is not subject to a
search without a warrant.” Appellant’s Brief at 27. However, we have
specifically held that Riley is inapplicable, and a warrantless search of a
cellular telephone is proper, when the search involves a parolee and the
parole officer has reasonable suspicion to believe there was a violation of
parole. See Commonwealth v. Murray, 174 A.3d 1147, 1156 (Pa. Super.
2017).



                                           -7-
J-S83022-17



whereabouts. Id. He tested positive for controlled substances, and did not

have a prescription, which showed Appellant had access to illicit narcotics.

Id. The parole agent also personally witnessed Appellant with a large sum of

cash and a cellular telephone, even though Appellant was not employed.5

Id.

       Section 6153 only requires reasonable suspicion that the cellular

telephone contained evidence of violations. There is simply no provision that

a parole officer must stop searching once a suspicion is confirmed, as

Appellant suggests. Moreover, despite Appellant’s claim that breaking curfew

and testing positive for controlled substances were the only potential

violations the parole agent was investigating, it is also clear from a totality

of the evidence of record that the parole agent had the requisite reasonable

suspicion to believe that Appellant was also procuring and potentially selling

narcotics.    The facts here suggested drug dealing (i.e., lack of gainful

employment coupled with possession of a cellular telephone and cash),

which is a separate violation of parole from using narcotics and missing

curfew.      Hence, the subsequent searches were proper and suppression

unwarranted.      We conclude that there has been no error at docket 5110-

2013 and that the March 31, 2017 opinion meticulously, thoroughly, and




____________________________________________


5   Appellant does not challenge or address this determination.



                                           -8-
J-S83022-17



accurately disposes of Appellant’s issue on appeal.     Accordingly, we adopt

its rationale as our own.

      In his second issue presented, Appellant claims the trial court erred in

denying suppression of evidence recovered from 3 West Fourth Street and

416 Vine Street at docket 753-2016.          Appellant’s Brief at 30.     More

specifically, Appellant argues that police had a warrant for his arrest in an

unrelated, alleged burglary and that the trial court erred “by finding that

exigent circumstances were present that permitted the initial warrantless

entry into 3 West Fourth Street that led to the observation of drug related

materials and ultimately the search warrant that led to the finding of

contraband.” Id. Additionally, Appellant challenges the protective sweep at

3 West Fourth Street alleging that, because he was arrested outside,

Appellant claims there were no issues with officer safety or any risk of

destruction of evidence inside “in this arrest for the alleged burglary.” Id. at

31. He claims “[t]he [possibility that Appellant carried a] gun was known

[by police] prior to going to the premises and, the discarding of drugs

occurred outside the property with no indication the drugs were related to

the property.” Id. at 33 (case citation omitted). Appellant posits that if the

investigating officer “already knew prior to going into the property without a

warrant that he would be looking for evidence of criminal activity such as a

gun or drugs, he should have obtained the warrant before he went, or at

least justified his reason for not being able to timely secure a warrant prior

to engaging in the operation.” Id. at 35. Appellant also argues that it was

                                     -9-
J-S83022-17



unreasonable for the police to conduct a protective sweep of 3 West Fourth

Street. Id.     As such, Appellant argues:

      The trial court concluded that the items of contraband observed
      during the initial illegal foray into 3 West Fourth Street would
      support probable cause to issue the search warrants for the two
      properties[, 3 West Fourth Street and 416 Vine Street.] Thus, if
      [] the initial foray into the property [at 3 West Fourth Street]
      was not constitutional, then the items seized pursuant to the
      search warrant are the fruit of the poisonous tree and both sets
      of respective items confiscated from each property must be
      suppressed[.]

Id. at 36.

      Here, the trial court first recognized that there is an exigency

exception to the search warrant requirement.              Trial Court Opinion,

3/31/2017, at 14-15.       The trial court then examined the 10 established

factors regarding exigency and concluded that the exception to the warrant

requirement had been met. Id. at 15. Although police had a warrant for

Appellant’s arrest in conjunction with an alleged burglary, they were also

investigating illegal drug activity at that location. Id. at 16 (record citation

omitted).     The investigating officer was aware that Appellant previously

carried a weapon.        Id.   Appellant fled from police and they recovered

packets of heroin that Appellant discarded while fleeing the officers.      Id.

Police were concerned that Melissa Griffin, who was still inside the residence,

could destroy additional evidence.      Id.    Thus, the trial court determined

“that the initial entry into the residence was permitted pursuant to exigent

circumstances.”    Id.    The trial court then concluded that the police were



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J-S83022-17



justified in conducting a protective sweep of the property to ensure their

safety and were not required to ignore the contraband seen in plain view.

Id. at 17. The trial court found that police knew at least one other person

was present and the protective sweep was limited to locating people inside

the residence, in places where a person could hide. Id. at 18.

      Based upon our standard of review, we discern no error or abuse of

discretion in denying suppression at docket 753-2016. Police believed that

Appellant could have been armed.       When they attempted to execute an

arrest warrant, Appellant fled and discarded narcotics. It was reasonable for

police to believe they would find additional evidence of narcotics in the

residence Appellant recently exited and they knew that Griffin was still inside

and could destroy evidence.     Moreover, police did not uncover a firearm

upon Appellant’s arrest and, thus, recognized that their safety was still

compromised.     Accordingly, exigent circumstances were present and a

protective sweep of the property permissible.         Thus, suppression was

unwarranted.   We conclude that there has been no error in this case and

that the March 31, 2017 opinion meticulously, thoroughly, and accurately

disposes of Appellant’s issue on appeal.     Again, we adopt its rationale for

denying suppression.

      In his third issue presented, Appellant again challenges the trial court’s

decision to deny suppression at docket 753-2016.           Appellant’s Brief at

39-46. Appellant claims that the initial entry into 3 West Fourth Street, as

well as the subsequent searches executed by search warrant of 3 West

                                    - 11 -
J-S83022-17



Fourth Street and 416 Vine, were conducted in violation of the prohibition on

executing searches at nighttime.        Id. He claims that “[n]othing in the

warrant explained why a nighttime search of either property was necessary”

and the trial court erred by concluding “the nighttime search was

appropriate due to fear of destruction of evidence and the fact that police

were holding the location secure while waiting for the search warrant.” Id.

at 41.

         The trial court and the Commonwealth assert that Appellant waived

this issue.     See Trial Court Opinion, 3/31/2017, at 21; Commonwealth’s

Brief at 17. Upon review, we agree. We have previously determined:

         “[A]ppellate review of an order denying suppression is limited to
         examination                of              the precise basis under
         which suppression initially was sought; no new theories of relief
         may be considered on appeal.” Commonwealth v. Little, 903
         A.2d 1269, 1272–1273 (Pa. Super. 2006); Commonwealth v.
         Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (“When a defendant
         raises a suppression claim to the trial court and supports that
         claim with a particular argument or arguments, the defendant
         cannot then raise for the first time on appeal different arguments
         supporting suppression.”).

              It    is    well-settled      law    that     motions
              to suppress evidence are decided prior to the
              beginning of trial. Moreover, pre-trial rulings on
              the suppression of     evidence    are    final.   In
              sum, suppression motions must ordinarily be made
              before the trial to the suppression court, they must
              be made with specificity and particularity as to the
              evidence sought to be suppressed and the reasons
              for the suppression, and the suppression court's
              determination is to be final, except in the case of
              evidence not earlier available.



                                       - 12 -
J-S83022-17


      Commonwealth v. Metzer, 634 A.2d 228, 233 (Pa. Super.
      1993) (citations omitted).

      Although the burden in suppression matters is on the
      Commonwealth to establish “that the challenged evidence was
      not obtained in violation of the defendant's rights,” Pa.R.Crim.P.
      581(D), that burden is triggered only when the defendant
      “state[s] specifically and with particularity the evidence sought
      to be suppressed, the grounds for suppression, and the facts and
      events in support thereof.” Commonwealth v. McDonald, 881
      A.2d 858, 860 (Pa. Super. 2005). Thus, when a defendant's
      motion to suppress does not assert specifically the grounds
      for suppression, he or she cannot later complain that the
      Commonwealth failed to address a particular theory never
      expressed      in    that   motion. McDonald, 881       A.2d    at
      860; Commonwealth v. Quaid, 871 A.2d 246, 249 (Pa. Super.
      2005) (“[W]hen a motion to suppress is not specific in asserting
      the evidence believed to have been unlawfully obtained and/or
      the basis for the unlawfulness, the defendant cannot complain if
      the Commonwealth fails to address the legality of the evidence
      the defendant wishes to contest.”).

Commonwealth v. Freeman, 128 A.3d 1231, 1241–1242 (Pa. Super.

2015). Upon review, Appellant’s omnibus pretrial motion to suppress did not

challenge the search of property based upon the time of night.             See

Omnibus Pre-Trial Motion, 3/11/2016, (unpaginated) at 2, ¶ 5(a)-(g). Thus,

we conclude that Appellant waived this issue.

      Finally, Appellant contends that the trial court erred in sentencing him

to an aggravated range sentence at docket 5110-2013 and imposing it

consecutively to the sentence at docket 753-2116.        Appellant’s Brief at

49-50.    Appellant also argues that the trial court failed to consider

“mitigating circumstances and salient rehabilitation factors[,]” including his

“drug addiction” and “horrific childhood.”      Id. at 51 and 61.   Appellant




                                    - 13 -
J-S83022-17



claims these failures resulted in him receiving unreasonable sentences. Id.

at 61.

         We have previously determined:

         It is well-settled that “[t]he right to appeal a discretionary aspect
         of sentence is not absolute.” Commonwealth v. Dunphy, 20
         A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant
         challenges the discretionary aspects of a sentence, an
         appellant's appeal should be considered as a petition for
         allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155,
         162 (Pa. Super. 2007). As we stated in Commonwealth v.
         Moury, 992 A.2d 162 (Pa. Super. 2010):

         An appellant challenging the discretionary aspects of
         his sentence must invoke this Court's jurisdiction by satisfying a
         four-part test:

               [W]e conduct a four-part analysis to determine: (1)
               whether appellant has filed a timely notice of
               appeal, see Pa.R.A.P. 902 and 903; (2) whether the
               issue was properly preserved at sentencing or in a
               motion            to         reconsider            and
               modify sentence, see Pa.R.Crim.P.       [720];      (3)
               whether appellant's brief has a fatal defect, Pa.R.A.P.
               2119(f);      and     (4)    whether       there     is
               a substantial question that    the sentence appealed
               from is not appropriate under the Sentencing Code,
               42 Pa.C.S.A. § 9781(b).

         Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa.
         Super. 2006)). Whether a particular issue constitutes
         a substantial question about the appropriateness of sentence is
         a question to     be     evaluated   on      a    case-by-case
         basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
         Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).


Commonwealth v. Radecki, 2018 WL 989152, at *21 (Pa. Super. 2018).




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     Here, the first three requirements have been met.     Appellant filed a

timely appeal, preserved the issue in a post-sentence motion, and included a

statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.   Thus, we

turn to whether Appellant raises a substantial question to implicate our

review.

     We have previously determined:

     We have found that a substantial question exists “when the
     appellant advances a colorable argument that the sentencing
     judge's actions were either: (1) inconsistent with a specific
     provision of the Sentencing Code; or (2) contrary to the
     fundamental     norms     which    underlie   the   sentencing
     process.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.
     Super. 2008) (citation omitted), appeal denied, 964 A.2d 895
     (Pa. 2009). “[W]e cannot look beyond the statement of
     questions presented and the prefatory [Rule] 2119(f) statement
     to      determine    whether      a    substantial     question
     exists.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.
     Super. 2013), affirmed, 125 A.3d 394 (Pa.2015).

     It is settled that this Court does not accept bald assertions of
     sentencing errors. See Commonwealth v. Malovich, 903 A.2d
     1247, 1252 (Pa. Super. 2006).

                         *           *           *

     We consistently have recognized that excessiveness claims
     premised on imposition of consecutive sentences do not raise a
     substantial question for our review. See Commonwealth v.
     Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc )
     (stating, “[a] court's exercise of discretion in imposing a
     sentence concurrently or consecutively does not ordinarily raise
     a substantial question[.]”), appeal denied, 126 A.3d 1282 (Pa.
     2015); see also Commonwealth v. Ahmad, 961 A.2d 884,
     887 n.7 (Pa. Super. 2008) ; Commonwealth v. Pass, 914 A.2d
     442, 446–447 (Pa. Super. 2006).

                         *           *           *


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J-S83022-17



       [However, a]s we explained in Commonwealth v. Dodge, 77
       A.3d 1263 (Pa. Super. 2013)]:

              A defendant may raise a substantial question where
              he receives consecutive sentences within the
              guideline   ranges   if   the    case     involves
              circumstances where the application of the
              guidelines would be clearly unreasonable,
              resulting in an excessive sentence; however, a
              bald claim of excessiveness due to the
              consecutive nature of a sentence will not raise
              a substantial question.

       Dodge, 77 A.3d at 1270 (emphasis added).

                               *               *      *

       We cautioned that although Dodge had raised a substantial
       question in his particular case, a defendant does not raise a
       substantial question “where the facts of the case [being
       reviewed] do not warrant the conclusion that there is a plausible
       argument that the sentence is prima facie excessive based on
       the criminal conduct involved.” Id. at 1271.

Radecki, 2018 WL 989152, at *22 (parallel citations omitted).

       Here, the facts of the cases do not warrant the conclusion that the

consecutive nature of the sentences were prima facie excessive based upon

the criminal conduct involved.6          Here, there were two separate criminal

cases involving different crimes, one involving a firearm. We conclude that


____________________________________________


6   We further note that the precedent we relied upon above addresses the
imposition of consecutive sentences within the same criminal information.
Here, however, Appellant challenges the consecutive nature of sentences
imposed in two separate criminal informations. There is no precedent
declaring that such sentences are contrary to sentencing norms or
inconsistent with our Sentencing Code.



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J-S83022-17



Appellant failed to raise a substantial question regarding the consecutive

nature of the sentences.

        However, “[w]e have held that a substantial question is raised where

an appellant alleges the sentencing court erred by imposing an aggravated

range     sentence   without   consideration    of   mitigating   circumstances.”

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012). Thus,

we will address the merits of Appellant’s claim that his aggravated range

sentence imposed at docket 5110-2013 was excessive and an abuse of the

trial court’s discretion.

        Our standard of review is as follows:

        Sentencing 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. An abuse of
        discretion is more than just an error in judgment and, on appeal,
        the trial court will not be found to have abused its discretion
        unless the record discloses that the judgment exercised was
        manifestly unreasonable, or the result of partiality, prejudice,
        bias, or ill-will.

        Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.
        Super. 2002) (citations omitted). More specifically, 42 Pa.C.S.A.
        § 9721(b) offers the following guidance to the trial
        court's sentencing determination:

              [T]he sentence imposed should call for confinement
              that is 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 on the community, and
              the rehabilitative needs of the defendant.

        42 Pa.C.S.A. § 9721(b).

        In    every    case     where     a sentencing court    imposes
        a sentence outside of the sentencing guidelines, the court must

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J-S83022-17


      provide in open court a contemporaneous statement of reasons
      in support of its sentence. 42 Pa.C.S.A. § 9721; see
      also Commonwealth v. Eby, 784 A.2d 204, 205–206 (Pa.
      Super. 2001).

            The statute requires a trial judge who intends
            to sentence a defendant outside of the guidelines to
            demonstrate on the record, as a proper starting
            point, [its] awareness of the sentencing guidelines.
            Having done so, the sentencing court may deviate
            from the guidelines, if necessary, to fashion
            a sentence which takes into account the protection of
            the public, the rehabilitative needs of the defendant,
            and the gravity of the particular offense as it relates
            to the impact on the life of the victim and the
            community, so long as [it] also states of record the
            factual basis and specific reasons which compelled
            [it] to deviate from the guideline range.

      Commonwealth v. Gibson, 716 A.2d 1275, 1276–1277 (Pa.
      Super. 1998) (internal quotations omitted).

      When evaluating a challenge to the discretionary aspects
      of sentence    [],   it   is  important    to   remember      that
      the sentencing guidelines are advisory in nature. Id. at 1277. If
      the sentencing court deems it appropriate to sentence outside of
      the guidelines, it may do so as long as it offers reasons for this
      determination. Id. “[O]ur Supreme Court has indicated that if
      the sentencing court proffers reasons indicating that its decision
      to depart from the guidelines is not unreasonable, we must
      affirm       a sentence that        falls     outside       those
      guidelines.” Id. (citations omitted, emphasis in original).

Bowen, 55 A.3d at 1263–1264 (Pa. Super. 2012).

      Moreover, where the sentencing court had the benefit of reviewing a

pre-sentence investigation report (PSI), an appellate court is required to:

      presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors.
      A pre-sentence report constitutes the record and speaks for
      itself. In order to dispel any lingering doubt as to our intention of

                                     - 18 -
J-S83022-17


      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure.        Having       been      fully     informed          by
      the pre-sentence report, the sentencing court's discretion should
      not be disturbed. This is particularly true, we repeat, in those
      circumstances where it can be demonstrated that the judge had
      any degree of awareness of the sentencing considerations, and
      there we will presume also that the weighing process took place
      in a meaningful fashion. It would be foolish, indeed, to take the
      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Knox, 165 A.3d 925, 930–931 (Pa. Super. 2017)

(citation omitted).

      In this case, there is no dispute that the trial court had the benefit of

PSI reports prior to sentencing.      Further, Appellant does not dispute the

accuracy of those PSI reports. Thus, we presume that the trial court was

aware of Appellant’s mitigating circumstances and considered them when

fashioning its sentence. Moreover, upon review of the record, the trial court

placed its reasons for its sentence on the record, first recognizing that

Appellant had a “not-so-wonderful childhood” and chronicling his addiction to

controlled substances, but ultimately concluding that he “led a life of

committing rather serious crimes, crimes that pose a significant harm and

danger to other people and to the community, crimes involving addiction,

distributing heroin, a situation that costs society and the police time and

money to a considerable degree [and] he admits to long-term selling of

controlled substances for profit.” N.T., 12/14/2016, at 43. The trial court

also stated that it believed a lengthy term of imprisonment was necessary to



                                      - 19 -
J-S83022-17



protect the public, because efforts at prior rehabilitation with Appellant were

unsuccessful.    Id.    For these reasons, an upward departure from the

sentencing guidelines was not unreasonable and we discern no abuse of

discretion in sentencing Appellant.

      Therefore, we affirm Appellant’s first two issues based on the trial

court’s March 31, 2017 and adopt it as our own. Because we have adopted

the trial court’s opinion, we direct the parties to include the trial court’s

opinion in all future filings relating to our examination of the merits of these

appeals, as expressed herein.         Moreover, Appellant waived his third

appellate issue and we discern no sentencing error.           As such, all of

Appellant’s appellate issues fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/18




                                      - 20 -
                                                                                                                Circulated 03/23/2018 08:55 AM




            IN THE COURT OF COMMON PLEAS OF MONTGOMERY (CO'UNTY PENNSYLVANIA
                                    CRIMINAL DIVISION33


                                                                           -···'I"' •. ,.   • OH• • . . ·····�·NO··�--...._.. _:.,._,.,-............
                                                              ,,,.,. ..•                                                                               ,:,
                                                             c; ...CP�4:6.:-.CR::.000Sl.10-201V
                                                                       CP-46-CR-000015 3�2016
            COMMONWEALTH OF PENNSYLVANIA                                   CP-4'6-CR-000074-5.�201'6

!:-. ....




            DESHAWN SMITH                                                            116 EDA 2016



                                                 OPINION

            CARPENTER J.                                                           MARCH 29, 2017


                                             INTRODUCTION

                          Appellant, Deshawn Smith (Smith"), has filed this counseled

            appeal from three distinct and separate judgments of sentence. Each of these
            three appeals at their respective docket numbers listed above ariŠe from three
            different set of events and facts and involve different crimes, despite the fact
            that sentencing on all three files occurred 011 the same day, December 14,
            2016,
            •ar two separate sentencing hearings. This Court notes that appellate counsel
                                                                                                                                                             \\


                                                                                                                                                              1\
                                                                                                                                                                      :�
                                                                                                                                                                       I;:: .


            has violated Pa.R.A.P. 341, Note which states, "lal party needs ro file only a                                                                    . :\

                                                                                                                                                                       ·1.
                                                                                                                                                                      j �·,.·

            sinele notice or appeal to secure review of prior non-final orders that are                                                                           l    -c,


                                                                                                                                                                  J�.':.
            made final by the entry of a final order, see K.ll. v. I.R., 82G A.2cl 863,
            87071. (Pa.
2003) (following trial); Betz v. Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012)
    I,>


(summary judgment). Where, however, one or more orders resolves issues arisinp;
on more than one docket or relating to more than one judgment,
                                        _::�
                                                 c ..�'flj
                                               �. ,}
                                                            ...
                                                       '..J I=




separate notices 01' appeal must be filed. Commonwealth V. C-M.K.. 932
A.2d 111, 1 13 & n.3 (Pa. Super. 2007) (quashing appeal taken by single
notice of appeal from order on remand for consideration under Pa.R.Crim.P.
607 Of two persons' judgments of sentence.)" However, in this case appellate
counsel filed a single appeal listing all three cases in his notice of appeal.
While this practice is prohibited by the rules and this appeal may be quashed,
this Court will address the merits ol" the three appeals in this 1925(a) Opinion
given that the Superior Court may exercise its discretion to consider the
merits of these appeals.
            First, Smith appeals from his judgment of sentenced entered on
December 14, 2016, at docket CP-46£R-0005110-2013 ("5110-2013"),
imposed following a stipulated non-jury trial on July 8, 2016, where he was
convicted of persons not to possess firearms l and possession with intent to
deliver. On appeal, Smith contests the denial of his suppression motion.
            Smith has also appealed from his judgment of sentence entered on
December 14, 2016, at docket CP-46-CR-0000753-2016 ("753-2016"), imposed

following a stipulated non-jury trial on September 26, 201 G, all which he was
-·
•.J.•I
           found guilty of possession with intent to deliver, criminal conspiracy, resisting
::��·�
           arrest and recklessly endangering another person.
,!,$

.'i'                   Finally, Sillilll has appealed from his judgment of sentence entered
,..
<    .
'1.;',,



           OhDecember      14,                       docket : : .PA.ff·CR-00007 4.5�.2.0-1.6 ("745 201'")
                                                                                                      . '
                                                                                                     )'


;r··.:::         18 PA,C.S.A .. §6.105.(a)(l).
�    .
i.i;l�
                 .35 P.S, ·§78(),-J. .l 3(�)(30) .
    ·J
           imposed foll(jwing his entry ot a guilty Plea on the same date to criminal
           trespass ß . Smith did not raise any issues in his court ordered concise statement
           of errors complained of on appeal relating to this guilty plea; therefore, all
           issues are waived in this regard, and this 1925(a) Opiflion focuses on Smith's
           convictions at dockets, 31.l0-2Ql 3 and 7532016.
                           DOCKET 5110-2013 FACTUAL AND PROCEDURAL HISTORY

                         After the denial of Smith's motion to suppress on June 15, 2016,
           the stipulated non-jury trial held on July 8, 2016, established the following.
           On June 19, 2013, a search by parole agents of Smith's residence turned up
           the following items: numerous unused read baggies, a digital scale, 932
           baggies of heroin. (Negotiated Guilty Plea/Stipulated Bench Trial 7/8/16 p.
           13). The total weight of the heroin was 29.71 grams. Id. at 16. In addition,
           parole agents found an unloaded black and silver Colt .45 caliber handgun
           underneath the mattress in the bedroom that belonged to Smith. Id. at 16. If
           an expert in the field of narcotics were to have testified at trial, he or she would
           have opined that based the amount of heroin and the manner in which it was
           packaged, the scale was found, the unused baggies and the text messages
 =·�·
•;,.I
          round on Smith's cell phone Smith possessed the heroin willi the intent to
          deliver. Ill, at 17.
                           On December 14, 2010, Smith was sentenced 10 an aggregate term
.,...,
          of six years, three months 10 14 years' imprisonment. A timely posvsentc:nce
�.....
i>.'1:•

t·•·             18 Pa.C.S.A. §�503(a)(1J(i).
          motion wag filed, which was denied by way of an order entered on December 27,

          2016. A timely notice of appeal followed on December 28, 2016.



                Whether there was reasonable suspicion to seize and search Smith's cell
                phone and to search his residence.
                                                DISCUSSION

          I.There was reasonable suspicjon to seize and search Smith's cell phone and
                to search his residence.
                        Smith contends that the motion to suppress was improperly
          denied. He argues on appeal that Agent Dominick lacked reasonable
          suspicion to seize and search hi$ cell phone and 10 search his residence,
                        The suppression testimony given on June 15, 2016, established the
          following facts. Parole Agent Scott Dominick began supervising Smith in
          November of 2012, a month after Smith was paroled from his one-and-a-half
          to four year sentence for possession with intent to deliver. (Motion to Suppress
          6/15/16 5, 6). Agent Dominick reviewed the conditions and rules of regulations
          of supervision. Id. at 7 - 8. One of the special conditions was, "You shall
          achieve nepative results in screening tests randomly conducted by the Board
         to detect your use of controlled substances..." Id. al 9 - TO. Smith also had a
.•·..·
         curfew of 8:00 p.m- tillliA 6:00 a.m. Id. at 10 l l .
                      On June .1 1 , 2013, Agent Dominick did a curfew check of Smith's

         approved residence al 447 East Elm Street, Apartment E-103, Pottstown. Ill. at
(�;
         Il. The agent arrived there at 10:05 p.m. Id. at I l. Although Smith lived there with
         his girlfriend, his son and his sisler, only Smith's sister and son were at
         the apartment. Idž at    ] 2. Smith and his girlfriend were missing. Id. at 12.

         Smith's sister told Agent Dominick that he was at Walmart with his girlfriend.
         Id. at 12. About two minutes later, as Agent Dominick was about to leave the
         residence, Smith's girlfriend entcred the house through a back door, as
         opposed to the front door. Id. at 13. She told the agent that Smith was out front
         with the car, although she insisted she had driven the car. Icl. at 13. The agent
         asked her some follow up questions. Id. Eventually, Agent Dominick left the
         residence in order to find Smith, which he did at about 1 0:13 p.m. out in the
         parking lot area of the apartment complex. Id. at 13 - 14. There was a car that
         was just leaving. Icl. at 14. In response tÔ the agent's questions, Smith told
         him that his friend had driven him. Id. There were additional inconsistent
         statements told to the agent by Smith. Id. As a result, Agent Dominick told

         Smith to report to Norristown the next day to discuss the curfew violation. Id.

                      The following day, on June 12, 2013, Smith reported to the

         Norristown office and was given an instant urine test. Id. The test showed that
         Smith tested positive for Oxycodone. Id. at 14 - 15. Upon questioning, Smith
         rejleralecl that he had been jn the hospital, but gave a different version ol' events
than lie had the previous night. I(l. at .1 5. He indicated thal lye might have been
given something [here. Id. at IS. Smith had no paperwork or prescription Ironm
rhe hospital al thal time. [d. Therefore, Agent Dominick instructed Smith to report
on June 19 th to provide the hospital paperwork.

             On June 19, 2013, Smith reported as instructed and did bring

hospital paperwork that showed that he was in the emergency room on June
               th
          10        for a sore throat. Id. at 16. Smith was given a prescription at the hospital,
          although it was not for a controlled substance. Id. Agent Dominick gave Smith
          another urine test, which again testing positive for Oxycodone. Id. In their ensuing
,   ...   conversation, Smith admitted taking Percocet and that he did not have a prescription
          for it. Id. In addition, when Smith carne through security at the parole office, the
          agent: saw that he had a cell phone and a wad of money, which was seemed unusual

          because Smith was not employed in the seven months that Agent Domiliick had
          been supervising him- Id. at 18. Although the agent did not know at that time how
          much money was in the wad. ,ld.

                         Because of the missed curfew, inconsistent statements and the two
          positive tests of urine, Agent Dominick told Smith to wait in the lobby while
          he had a conversation with his supervisor, Id. at 17 18. Agent Smith reviewed
          the situation with his supervisor, Agent David Dettinburn. Id. at 18, 35 - 37.
          Together they decided to have a supervisor's conference, which is a meeting with the
          parolee, parole agent and the supervisor, to discuss the violations and determine how
          10 proceed. Id. at 18 - 19. During that conference, Smith's phone was searched by
          Ille supervisor, and he did find incriminating evidence. Id. al: .19 - 20, 37. For
          example Agent Dertinburn testified thal in the text messages where Smith was
          talking about his positive urine test he states, "Nar it's come up for perc again." Agent
          Det:tinburn believed this to be referring to his using drugs. Id. at 40; see also, Exhibit
          "C-3", Cell Phone Exvraction Report. Also, Agent Detlinbtll'il testified further that
          the text messages read, "How many do you want?" 10 which i l was replied, "l need
          two." Agent Deltinburn believed this

                                                       7
to mean that someone ig requesting two bundles or baggies Of drugs from
Smith. Id. at 41, Further, the tests read, O Can I get six for 50? Pinky gonna
come meet you cause I got my son." Agent Dettinburn testified that this means
six bags for $50.00. rd.
             Smith was detained. Id. at 20. He was also searched, at which time
Smith was found to have        on his person. Jd. Slñith trjed to explain away the
money. Id. at 32 - 33. He told the agent that the money was from selling DVD'g or
tee shifts- Agent Dominick told this Court that at this point it became clear to
him and his supervisor that Smith's residence would be searched, Id. at 20.
             Our appellate court's standard of review in addressing a
challenge to the denial of a suppression motion is limited to determining
whether the suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are correct.
Because the
Commonwealth prevailed before the suppression court, the appellate court
may consider only Ille evidence of the Commonwealth and so nmuctð of the
evidence ror the defense as remains uncontradicted when read in the context
of the record as a whole. The suppression court's legal conclusions are binding
011 an appellate court, whose duty it is to determine if the suppression court
properly applied the law to the facts. Thus, the conclusions ol' law of the courts
below are subject to our plenary review. Commonwealth v. Jones, 988 A.2d
(jA9,


                                         8
           654 (Pa. 2010) (citations, quotations, and ellipses omitted).
                         Ag a general principle, a parolee has a diminished expectation of
           privacy by virtue of their status as the assumption of the institution of parole is
 -,
I.,
 ,".·
:.,,
           that the parolee is more likely than the ordinary citizen to violate the law;
           therefore, reasonable suspicion to search a parolee's person or property is
\/:,;.
. ,. ..,
.. t       sufficient. Commonwealth v. Smith, 85 A,3d 530, 533 (Pa-Super. 2014) (citing
           Commonwealth v. Colon, 31 A.3d 309, 315 :Pa.Super·.2011) quoting
           Commonwealth v. Hunter, 963 A.2cl 545, 351-52 (Pa-Super. 2008)). A state
           parole agent's authority under the circumstances encountered in the instant

           case is governed by 61 Pa.C.S. § ·.6153- Supervisory S relationship to
                                                            11




           offenders."
           The specific sections of the statute that apply to the conduct of Agent
           Dominick read as follows:
                         (d) Grounds for personal search of offender.--
                         (2)   A property search may be conducted by an agent
                         if there is reasonable suspicion to believe that the real
                         or other property in the possession of or under the
                         control of the offender contains contraband or other
                         evidence of violations of the conditions of
                         supervision.
                          (3) Prior approval of a supervisor shall be obtained
                         for a property search absent exigent circumstances.
                         NO prior approval shall be required ror a personal
                         search.

           61 Pa.C.S.A §· 0153(

                         The statute also provides a list of factors for consideration when

                                                     9
                determining whether sucll reasonable suspicion exists:
    ,.,.....�
     ,.,                    (U) The existence of reasonable suspicion to search
    � •,_\
'     .                     shall be determined in accordance with
                            constitutional search and seizure provisions as
     i. ••
                            applied by judicial decision. In accordance with such
                            case law, the
                             following factors, where applicable, may be taken into account:
                             (i)      The observations of agents.
                             (ii)     Information provided by others.
                             (iii)    The activities of the offender.
                             (iv)     Information provided by the offender.
                             (v)      The experience of agents with the offender.
                             (vi) The experience of agents in similar circumstances. (vii) The
                            prior criminal and supervisory history of the offender.
                            (viii) 'The need 10 verify compliance with the
                            conditions of' supervision.
                                    6153(
                61 Pa.C.S.A. S

                             An examination of the evidence presented by the Commonwealth
                at the suppression hearing, as applied to the factors listed above, led this Court
                to find that there was abundant reasonable suspicion of a parole violation in
                view of the totality of the circumstances surrounding Agent Dominick's
                encounters with Smith. This Court considered Smith's criminal history. Smith
                was at the time being supervised on parole for a possession witli intent to
                deliver conviction. This Court also considered that Smith had two positive
                urine tests for drugs; Smith had violated his curfew; that there was a series of
                inconsistent statements about his whereabouts and conduct on the night of the
                curfew violation and that the observations of Agent Dominick of the wad of
                cash Smith had in his possession despite being unemployed just prior to the

                                                             10
search of the cell phone. These factors all supporled this Court's finding ol'
reasonable suspicion to search Smith's cell phone. The search of the cell phone
gave additional incriminating evidence that led Agent: Dominick's supervisor,
Agent David Dettinburn to conclude tor all purposes that a search of [he
residence was appropriate. Accordingly, based upon these considerations this
Court found that Agent Dominick had the requisite reasonable suspicion to
conduct the searches.
                                CONCLUSION

          Based on the foregoing analysis, the judgment of sentence imposed

on December       2016 in regard to docket 5110-2013, Should be affirmed.




                                       11
                  DOCKET 75.3-2016 - FACTIJAL AND PROCEDURAL..              HISTORY
                     On September 26, 2016, a suppression hearing was held, at
                     the
,, I
        conclusion of which suppression was denied. Directly after Smith's motion to
       suppress was resolved, Smith proceeded to a stipulated aon-jury tfia-l, where he was

       found guilty of the aforementioned charges. Smith filed a postsentence motion,
       challenging The discretionary aspects of his sentenceL The motion was deniecL
       Subsequently, a l'imely notice ot appeal was tiled, which gives rise to this appeal-
                                               ISSUES

                     Issue seven as set forth in Smith's concise statement of errors
        complained of on appeal seems to merge testimony from this case with an
        assertion of error from the previous case. It can't be discerned by this Court,
        the error that Smith wishes to have reviewed in Issue seven; therefore, it
        will not be addressed.
        1.    Whether there were exigent circumstances giving rise to a protective
              sweep of 3 West Fourth Street.
        ll.Whetherthere was sufficient orobable cause to issue a search warrant ror 3
              West Fourth Street and 416 Vine Street.

       Ill.   Whether the nighttime search was proper.
        IV.Whether live imposition of consecutive sentences was proper.
                                           DISCUSSION

       1. There were exigent circumŠtances giving rise to a protective sweep of 3 West
             Fourth Street.


                 The Suppression Hearing established the following facts. Sergeant
           Edward Kropp, Jf., an experienced drug investigator, of the Pottstown Police
           Department, Community Response Unit was present when Smith was taken into
           Custody on December 179 2013. (Motion to Suppress/StipulateçI Bench Trial
,:,:
.......
   '       9/26/16 op. 5 6). As Sergeant Kropp was walking back to his office at

,......    Pottstown Borough Hall he saw Smith sitting in the interview room. [d. at 7. Smith
·� . •
    ..,,
           who is familiar with the sergeant voluntarily said to him "How are you going to
           charge me with what was in that apartment? I don't even live there. J live at 416
           East Vine Street." Sergeant Klopp responded to Smith telling him to talk to the
           people attempting to interview him about that," and he continued walking to his
           office. 'd. 7 - 8.
                          Smith had been arrested at 3 West Fourth Street, Pottstwon,
           Montgomery County. Id. at 8. Sergeant Kropp was present for that arrest, where he
           was initially on surveillance of that properly. lc[. at 9- The sergeant had seen Smith
           go into the residence, by the time DetectÎve Kropp recognized it was Smith who he
           had know from a prior occasion, Smith was already inside. Id. at 9, 25. Detective
           Kropp decided to wait until Smith had come out or the residence because it was

           known [hal there was a firearm involved in his prior history; therefore, the police

           believed it to be safer 10 wait until Smith exited



                                                     12
           the residence rather than making entry into an apartment with a potential for

           Smith to have a weapon, Id. at 25.

                            Upon seeing Smith leave, the police pulled up and Smith fled. Id. at


                                                      13
        9. As he fled, Sfnith discarded his cell phone and heroin, Id. at 9 I O. The police

        knew that Smith'S co-defendant was still inside the residence, because Sergeant

: r.�   Kropp watched her arrive with Smith but did not see her leave. Ids at 10.

                     Once Smith was arrested, the police determined that they would

        seek a search warrant for the premises at 3 West Fourth Street. Id. at 10.

        Sergeant Kropp wanted to secure the residence for the application of that
        search warrant. at 10. He knew there was another person present and he was
        concerned about the destruction of evidence. Id.

                   The police opened the door of the residence, which was unlocked.

        Id. at 10 - l l. They announced "Police," and asked if anyone was present.              at
         I l . Eventually, Smith's co-defendant, Melissa Griffin said she was in the bedroom,
         and the police told her to come out with her hands up. [d.
                      For safely, the police went inro every room ol' Ille apartment to

        ascertain il there were any other people present. Id- at 11 - 12. In doing this, they

        saw items of contraband and other items that would support probable cause. Id-

        at 13. For example, Detective Kropp observed that there were three cell phones

        and a of' money ill one room- Id. 111 another, he saw items of paraphernalia.

        None of this seized. Id. at .13 14. However, they were in




        plain view and thé police put these observations into the body of the search
        warrant. Id. at 23.
    ·•
                     This was a nighttime search, and the police put the reasons for the
         search in the warrant. Id. at 19.
                     At the conclusion of Detective Kropps's testimony and argument
:'.<li
...
;
         of counsel, this Court put its findings of fact and conclusions of law on the

. ..     record. The motion to suppress was denied.

                     Our appellate court's standard of review in addressing a challenge
         to the denial of a suppression motion is limited to determining whether the
         suppression court's factual findings are supported by the record and whether
         the legal conclusions drawn from those facts are correct. Because the

         Commonwealth prevailed before the suppression court, the appellate court
         may consider only the evidence of the Commonwealth and so much of the
         evidence for the defense as remains uncontradicted when read in the context
         of the record as a whole. The suppression court's legal conclusions are not
           binding on an appellate court, whose duty it is to determine if the suppression
         court properly applied the law 10 the facts. Thus, the conclusions of law of the
         courts below are subject to our plenary review. commonwealth v. Jones, 988
         649,

         654 (Pa. 2010) (citations, quotations, and ellipses omitted).

                      The Fourth Amendment to the United Slates Constiturjon and
         Article 1, Section 8 of the Pennsylvania Constitution protect citizens against:

         unreasonable searches and seizures. Both constitutions forbid police 10 enter
         a private home without a warrant absent probable cause and an exception to
         the warrant requirement, such ag exigent circumstances or consent.
                                                  15
:. .1
         Commonwealth v. JQhnson, 68 A.3d 930, 935 (Pa.Super. 2013).
                     Exigent circumstances arise only where "the need for prompt
'.
   'f
         police action is imperative, either because the evidence sought to be preserved
         i$ likely to be destroyed or secreted from investigation, or because the officer
         must protect himself from danger ...s" Commonwealth v. Lee, 972 A.'2d l, 5
···,,t
         (Pa.Super. 2009) (citation omittedL Various factors need to be taken into
         account to aSsess the presence of exigent circumstances; for example: (l) the
         gravity of the offense; (2) whether the suspect is reasonably believed to be
         armed; (3) whether there is a clear showing of probable cause; (4) whether
         there is a Strong reason to believe that the suspect is within the premises being
         entered; (5) whether there is a likelihood that the suspect will escape if not
         swiftly apprehended; (6) whether the entry is peaceable; (7) the timing of the
         entry; (8) whether there is hot pursuit of a fleeing felon; (9) whether there is a
         likelihood that evidence will be destroyed if police take the time to obtain a
         warrant; and (l O) whether there js a danger to police or other persons inside
         or outside ov the dwelling to require immediate and swift action. In analyzing
         exigent circumstances, courts must balance the needs ol' law enforcement
         against the rights and liberties of private citizens. Johnson 68 A-3d al 937
         (citation omitted). The Commonwealth bears the burden ol' presenting clear
         and convincing evidence Ihal [he circumstances surrounding the opportunity
         to search were truly exigent and thal the exigency was ill no way attributable
         to the decision by the police ro Forego seeking a warrant. Commonwealth v.
          Bostick, 958 A.2d 543, 556-557 · (Pa-super. 2008) (Citation omitted).
          Moreover, all decisions made pursuant to the exigent circumstances
• >
·I,   I
          exception must be made cautiously because it is an exception that by its
...       nature can very easily swallow the rule unless applied in only restricted

r"
          circumstances. Id. at 557.
 ···.(                 In this case, an examination of the above delineated factors
          reveals that there were exigent circumstances in this case sufficient to justify
          the warrantless entry Of the police into 3 West Fourth Street, (Motion to
          Suppress/Stipulated Bench Trial 9/26/16 p, 26). The police were investigating

          Smith illegal drug activity in this location. The investigation into Smith was a part
          of an ongoing and larger investigation. Id. at 25. Second, Smith was known by
          Detective Kropp to have a weapon in his past, and he believed on the night of the
          search, Smith might be jn possession of a weapon. Id. at 23. This gave police
          urgency. Additionally, Detective Kropp observed Smith enter the property a 3 West
          Fourth Street with co-defendant Griffin. Smith had discarded heroin upon leaving
          the residence and fleeing from the police after they announced, "Police, Stop."
          There were about 14 bags of heroin that Smith discarded. Detective Kropp
          explained at the suppression hearing that he was concerned about the destruction of
          evidence because he knew that Griffin remained in the residence. Further, Smilll
          was apprehended a very short disvatvce from that location.
                       Having concluded that the initial entry into the residence was




                                                    17
.,>
         permitted pursuant to exigent circumstances, we turn ro [he legitimacy of the
         protective sweep ol' the residence that ultimately uncovered drugs anddrug
         contraband. It ig well settled that "lu]nder emergent. circumstances, protective
A,,t,
         sweeps are a well-recognized exception to the warrant requirement."
         Commonwealth v. Witmani 750 A.2d 327, 335 (Pa.Super. 2000) A protective
   •',
         sweep is "a quick and limited search of premises, incident to an arrest and
         conducted to protect the safety of police officers or others." Maryland v, Buie,
         494 US. 325, 327, 110 s,CT. 1003, L.Ed.2c1 27 (1990). sets forth twolevels of
         protective sweeps. Id. at 334, 110 S.Ct. 1093. A properly conducted sweep is
         for persons. It cannot be used as a pretext for an evidentiary search. rt cannot
         be lengthy or unduly disruptive. It must be swift and target only those areas
         where a person could reasonably be expected to hide. Commonwealth v.
         Crouse, 729 A.2d 588, 598 (Pa.Super. 1999). Although the purpose of a
         protective sweep is to assure officer safety, police officers are not required to
         ignore contraband they encounter in the course thereof. -Commom� ealth v.
                                                                               1
                                                                                   I




         Potts, 73 A.3d at 1275, 1282 (Pa.Super, 2013) ("If, while conducting a
         protective sweep, the officer should ... discover contraband other than
         weapons, he clearly cannot be required 10 ignore the contraband, and the
         Fourth Amendment does not require its suppression in such circumstances.");
         Crouse, 729 A .2cl al 593
         (evidence observed in plain view durinp; a protective sweep is admissible). In




                                                 18
;'')'
,J
IJ
,J
          Crouse, supra, our Superior Courv held that properly conducted protective
          sweeps violate neither the Fourth Amendment [tol United States Constitution
          nor Article l, Section 8 ov the Pennsylvania Constitution. "A protective sweep
c   I
          is 'a quick and limit;ed search ol' premises, incident to an arresti and conducted
          to protect the safety of police officers or others.' " Commonwealth v. Taylor,
'   .,    771 A.2d [261, 1267 (Pa. 2001) (quoting Marylann_yž                494 U.s. 325,
          327 (1990)).
                       This Court found the search of 3 West Fourth Street was proper.
         There were exigent circumstances to support the protective sweep. The
         protective sweep and was limited to securing the premises and locating any
         persons inside. It is significant that the search immediately followed Smith's
         arrest as short distance away from this location. The police only looked in
         places where people could be. In addition, there may have been guns accessible
         to persons inside. They knew for a fact, that there was at least one other person
         was inside the residence. Therefore, the police entered the residence to conduct
         a protective sweep after exigent circumstances arose.
         ll.    There wa        'ficient nrob•thle cause to is ue a search warrant         West
                                                                               for
                Fourth Street and 416 Vine Street.
                       Smith's second issue on appeal, asserts that the search warrants
         for both 3 West Fourth Street and 416 Vine Street lacked sufficient probable
         cause.
                       The reviewñng court is not to conduct a de novo review of the


                                                    19
        issuing authority's probable cause determination, but is simply to determine
        whether or not there is substantial evidence in the record supporting the
        decision to issue a warrant In so doing, the reviewing court must accord
·� ..   deference to the issuing authority's probable cause determination, and must
        view the information offered to establish probable cause in a commonsense,
        non technical manner. Comonwealth v. Gaglìardi, 128 A.3d 790, 794 (Pa.
        Super.
        2015) (quoting Commonwealth v. Jones, 988 A.'2d 649, 655 (Pa. 2010)). This

        requires consideration of the totality of the circumstances. Commonwealth v.

        Galvin, 985 A.2d 783, 796 (Pa. 2009). The Court wjll consider whether the issuing

        authority correctly determined "given all of the facts and circumstances provided in

        the affidavit, including the veracity and basis of knowledge of the   er sonssupplying
        hearsay information, [that) there is a fair probability that contraband or evidence of

        a crime will be found in a certain locale." "It must be remembered that probable

        cause is based on a finding of the probability of criminal activity, not a prima lacie

        showing of criminal activity." Commonwealth v. Luton, 672 A.2d 819, 822

        (Pa.Super. 1996)(citing Commonwealth v. Baker 615 A.2d 23, 25 (Pa. 1992)).

                        Moreover, "[i]f a substantial basis exists to support the magistrate
        l
            s probable cause finding, [the trial court] must uphold that finding even if a
        different magistrate judge might have found the affidavit insufficient to
        support a warrant." Jd. at 795 (quoting United States v. Leon, 468 U.S. 897,


                                                  20
..
     914 (1984); citing United States v. Miknevich, 638 F.3d 178, 182 (3rd Cir,
     2011) (internal citations and quotations omitted)). Furthermore, "a
     magistrate's determination of probable cause 'must be based lup101Þ facts
     described within the four corners ol' the supporting affidavit.'" Id. (quoting
     Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing
     Commonwealth v. Smith, 784 A.2d 182, (Pa. Super.
                  In rhjs case, a fair reading of The affidavit Vor 3 Wesl Fourth Street

     presented 10      issuing authorily permitled the issuing authority 10 Find
     Iha( probable cause existed for the issuance Of the search warrant. The
     affidavit clearly states that the affiant, Officer Brandon Nf. Unruh, has the
     background and training in narcotics investigations. See, Exhibit "(I-I",
     Affidavit of Probable Cause for 3 West Fourth Street. The basis for the
     search warrant related to the charge of possession with intent to deliver.
     Based upon the information from four confidential informants, a controlled
     buy, evidence of drugs and other contraband found during the protective
     sweep of 3 West Fourth Street and information received from West
     Pottsgrove Police Department.
                 In addition, the affidavit. for 3 West Fourth Street presented to
     the issuing authority permitted the iŠsuing authority to find that probable
     cause existed for the issuance of the search warrant. Both affiants, Officer
     Um-uh and Detective Timothy Roeder, have the background and training in
     narcotic investigations. The basis for the search warrant included information

                                             21
from four confidential informants, a controlled buy, information received
from Melissa Griffin, evidence and drugs and other contraband found during
the protective sweep of 3 West Fourth Street and evidence found from the
search of 3 West Fourth Street.
            A reading of both warrants demonstrates thal rhe police had good
information Ihar Smith stayed at both locations, and spent tune there. The
police did know of the relationship between Smith and Griffin. In the warrants
the confidential informants established that Smith wag involved in an ongoing
drug sale enterprise. These people had purchased drugs from Smith directly.
Both warrants also contained the controlled buy ol' drugs from Smith and
show




                                      22
            information demonstrating that smith traveled from one location to the other,
            The scarch of 3 West Fourth Street yielded a good amount of heroin,
t: ..
. ,,
ii 11- �-

 -,         supporting the search of the Vine Street location.
                        In addition, both affidavits set forth considerable reasons based on
            the extensive experience of the two affiants that support the conclusion that a
,I-.


            drug dealer such as Smith keeps guns, drugs and evidence ill locations where
            -he stays and lives. Therefore, this Court concluded that the iŠsuing authority
            had a substantial basis for a finding of probable cause to believe evidence of a
            crime, including contraband, would be found at both locations.
            111. The nighttime search was proper.
                        Next, Smith contends that this Court erred ill finding that the
            prohibition on nighttime searches did not apply.

                        Our Supreme Court has mandated           search warrant shall
            authorize a nighttime search unless the affidavits show reasonable cause for
            such nighttime search." Pa-R.Crim„P. 203(E). Due to the greater intrusion
            upon an individual's privacy occasioned by a nighttime search, some. greater
            justification than that required for a daytime search must be shown. See
            l?a.R.Crim.P. and Comment]. Put simply, llve affidavit for a warrant
            authorizing a nighttime search must show both probable cause and some
            reason why the search cannot wait unlit morning Commonwealth v-
            Bowmaster, 01 A.3d 789, 793-794 (Pa.Super. 2014) (italics and citations
            omitted).
.,                      However, to the extem that Smith challenges the nighttime aspect
         ol' the issuance ol' the search warrant, this issue is waived. Al the suppression
         hearing, Smith contested Smith's "statements made by [Smith], and the
),   .   search warrant in question and the manner of entry into the building before
         the search warrant." (Motion to Suppress/Stipulated Bench Trial 9/26/16 p.
         4). Appellate review of an order denying suppression is limited to an
         examination of the precise basis under which suppression initially was
         sought, and no new theories or relief may be considered on appeal.
         Commonwealth v, Little, 903
         A.2d 1269, 1272-73 (Pa.Super.2006). Smith did not develop a specific
         argument
         regarding nighttime execution of the search warrant in his motion to suppress
         argued at the suppression hearing; therefore, it is waived. See Commonwealth
         v. Gordon, 328 A.2d 631, 642 (Pa.Super .1987) ("The raising of one particular
         theory in support of a suppression claim is not sufficient to preserve all other
         possible grounds for suppression of the same evidence")-
                       Even if thiS claim is reviewable on appeal, it does not provide Smith
         with relief. This Court found that the nighttime search was appropriate,
         giving the reasons supplied to the issuing authority, including the fear of
         destruction of evidence and the fact that the policc were holding location
         secure while wailing for the search warrant.

         IV ..The imposition of consecutive sentences was proper.
                         Last on appeal is Smith's contention that the imposition of
            consecutive sentences was excessive and did not lake into accounl his
I..•
            rehabilitative needs.

   �-
 ...                     On December 14, 2016, a sentencing hearing was held on both
·�·1..,.
....f..,,

            Common Pleas dockel:s. 51              and 753-201 6. Al the sentencing hearing,
"'-1-.\     the Commonwealth presented the testimony of Detective Michael
            Mark0ViCh, an
            18 year veteran of the Pottstown Police Department. (Sentencing 12/14/16 p. 6). In
            regard to the 2013 case, docketed at 5110-2013, Detective Markovich was involved
            in the June 9, 2013 search warrant, at which time he recovered 932 bags of heroin
            from Smith's re$iclence. Yd, at 7. The detectivc opined that in 2013 heroin was in
            Pottstown; however, it was thc epidemic that it is today and that at that time this was
            by far the most heroin packaged for sale that he and
            Sergeant Kropp as the arresting officers had ever seen. Id. at 7. In 2015, when
            1290 bags of heroin were recovered in regard to docket 753-2016, Detective
            Markovich opined that although heroin had taken off ill Pottst0Vvrn and was
            now the drug of choice, the nearly 90 bundles and over 1200 bags of heroin
            that was recovered wa$ the most heroin that had been seized in Pottstown-
            Id. at 8. The detective explained how hard the heroin epidemic has hit
            Pottstown. Id. at 8 9.

                         Next, the Commonwealth called Lieutenant Erik Echevarria to
            testify. Lieutenant Echevarria is a seasoned investigator having been with the
            Montgomery County Detective Bureau since 1999. 'd. at 11. At some point he was
            assigned 10 the Narcotic Enforcement Team, which oversees drug investigations

                                                      25
        throughoul Montgomery County. in particular, the lieutenant oversaw the
        Povtstown territory, and was involved the 201 5 search and seizure of 1290 baggies
        or heroin with a street value of about Id. at l?
'i.•
          13. The lieutenant opined that other than seeing such large amounts from
•·'2                                         a
        source city such as Allentown, Reading, Philadelphia, the seizure of that much
   ·'   heroin is an excessive amount in Montgomery County. Id- at 13 - 14, 15.
                      After the Commonwealth concluded, Smith testified. He told this Court
        about his difficult childhood. Icl„ at 17 19. He also told this Court that he has a
        fot1Eyear•oId son that he tries to take of financially. Id. at 20. Smith furtihe.r stated
        that when he gets out or jail he wants to get a legitimate job such as becoming a
        truck driver- Id. at 21.
                      After argument from counsel, this Court imposed its sentence as
        follows. On docket 5110-2013, Smith was sentenced to an aggregate term of
        six years and three months' to 14 years' imprisonment. Id. at 44 - 43. Then at
        docket 753-2016, this Court sentenced Smith to a term of 27 months to six
        years. This latter sentence is to run consecutive to the former, with a total
        aggregate sentence of 1ght-and-a-half to 20 years' imprisonment. Id. at 45.
                      On appeal, Smith contends his aggregate sentence of eight-and-ahalf
        years to 20 years' imprisonment is excessive, and that this Court erred in
        imposill}ž consecutive sentences. Smith argues that this Court failed to consider
        his rehabilitaljve needs.
                      This is a challenge to [tie discretionary aspects ol' his sentence
        Ior which there is no automatic right to appeal. Commonwealth v. Marts, 889
         A,2d 608 (Pa.Super. 2005) (holding thal challenge 10 the trial court's
         imposition of consecutive sentences is a challenge to the discretionary
         aspects of a sentence). Such appeals are granted at the appellate court's
 ..·
.,   I
         discretion where there is a stihstanlial questlon.thal the sentence is nor
         appropriate under the Sentencing Code. 42 Pa.C.S.A. S 9781(b), A
 '   {
         substantial question is presented where a defendant. advances a colorable
         claim that the trial court's sentence is inconsistent with the Sentencing Code
         or fundamentally contradicts the norms which underlie the sentencing
         process. Commonwealth v. Cleveland, 703 A.2d
         1046, 1048 (Pa.Super. 1997). The determination of what constitutes a
         substantial question must be evaluated on a case-bycase 'basis.
         Commonwealth
         v. Paul, 925 A.2d 825.Super.2007).
                      In Commonwealth v. Austin, GG A.3d 798 (Pa.Super. 2013)

         our Superior Court has provided some guidance as to whether Smith's claim
         raises a substantial question.
                      Generally, Pennsylvania law affords the sentencing
                      court discretion to impose its sentence concurrently or
                      consecutively to other sentences being imposed at the
                      same time or to sentences already imposed. Any
                      challenge to the exercise of this discretion ordinarily
                      does not raise a substantial question" Commonwealth
                      v. Prisk, 13 A.3d 526, 533 (Pa.Super.2011). see Commonwealth
                      v. Hoag, 445 Pa.Super. 435, 663 A.2d
                     1212 (1995) (stating an appellant is not entitled to a
                     'volume discount" for his crimes by having all
                     sentences run concurrently). In fact, this Court has


                                                 27
recognized "the imposition or consecutive, rather
than concurrent, sentences may raise a substantial
question in only the most extreme circumstances,
such as where the aggregate sentence is unduly
harsh, considering Ille nature ol' the crimes and the
length of imprisonment." Commonwealth v.
Lamonda, 32 A.3d 3651 372 :Pa.Super.2012) (en
banc) (citation omitted).
That is "in out' view, the key [0 resolving the preliminary
substantial question inquiry is whether the decision 10
sentence consecutively raises Ille aggregate sentence to,
what: appears upon its face to be, an excessive level in
lighl of     criminal conduct al issue in the case." PriŠk,
13 A.'3d at 533 (quoting
                     Magtromarino, 2 A.3d at 587) (quotation markŠ omitted).

         Austin, 66 A.3d at 808 - 809, Applying this case law to this case, it seems that
         Smith's issue does nor raise a substantial question.
,,,
''

                     Even assuming our Superior Court determines that Smith does
J.,,
         raise a substantial question, this claim lacks merit and should be rejected. The
\   ..
         imposition ol' cOnsecutivc rather than concurrent sentences lies within the
         sound discretion of the sentencing court. Commonwealth v. 'ohnson, 961 A,2d
         877, 880 (Pa.Super. 2008) (citing, Commonwealth v. Lloyd, 878 A.2d 867,
         873 (Pa.Super.2005). Factors to be considered when determining a defendant's
         sentence include the character Of the defendant and the particular
         circumstances of the offense in light of the legislative guidelines for
         sentencing. Commonwealth v. Scott, 860 A.2d 1029, 1032 (Pa.Super. 2004).
         The sentence imposed must be consistent with the protection of the public, the
         gravity of the offense and the rehabilitative needs of the defendant. Id. Mental
         illness is clearly a factor that may be considered in sentencing. However, there
         is no mandatory reduction or modification in a defendant's sentence that could
         be imposed. Commonwealth v. Diaz, 867' A-2cÍ 1283, 1287 (Pa.Super. 2005).
                     Where the sentencing judge had the benefit of a presentence
         investigation report, il will be presumed Thal lie "was aware ol' relevant
         information regarding the defendant's character and weighed those
         considerations along with mitigating stalulory factors." Commonwealth
         v.

                                               29
       Devers, 546 A.2d Il, [8 (Pa. 1988). Further, "lhlæanp; been IQ111y informed by
       the presentence report, thë sentencing court's discretion should riÕt be
       disturbed." Devers, 546 A."2d at 18; see also, Commonwealth v. Egan, 679
t.,
:,,.   A.2d 237, 239 (Pa.Super. 1996) (The court is required to place its reasons for
       the sentence on the record and this requirement can be satisfied by indicating
       it has reviewed a pre-sentence report). This Court placed its reasons for the
       sentence imposed on the record in relevant part as follows:

                   Well, the Court does have the benefit of a lot of
                   information concerning sentencing of this particular
                   defendant, having heard the bench trial, receiving two
                   presentence investigations and reports, which actually
                   pretty much mirror each other except for the different
                   factual patterns set forth for the criminal conduct. I
                   have also reviewed the Sentencing Code and
                   considered the information supplied today through
                   counsel by way of testimony and argument.
                   I will look at the presentence investigation and reports
                   for a moment.
                   At the time of these reports the defendant was 26
                   years old. Two dependents are listed. High school
                   diploma. He did indicate to the presentence
                   investigator, as Mr. Flick said, with some candor that
                   he started selling drugs at the age of' 14; that he sold
                   heroin, crack cocaine and marijuana; that he sold
                   drugs to support himself. He indicated it was an easy
                   way to make money. He estimated he made
                   approximately $60,000 in the year prior to his arrest.
                   And he mirrors that in the other report also, where he
                   admitted to selling drugs to support himself and his
                   giflfriend, and using [he gun for protection.


                                              30
        Now, there is a criminal history and ill is somewhat
        significant. Ile first got in trouble as a juvenile,
        October He was adjudicated delinquent, receiving
        stolen property, conspiracy offense. 2G04
                                               .  ,..
,...:   the crime was possession ol' a weapon on school property.
        Del'enclanl was adjudicated delinquenl.
        Mr. Flick argues that he has no history of violence.
        That's a pretty serious offense with a great potential
        for violence, possessing a weapon on school
        property.
        He was adjudicated delinquent again in 2006 for a
        drug offense and disorderly conducU 2007, Drug Act
         possession; adjudicated delinquent. And later in
        2007, possession With intent to deliver, an ungraded
        felony. That's a significant crime for a juvenile. He
        then repeats as an adult.
        As an adult, 2008, criminal conspiracy. Placed on
        probation and later violated probation on two
        occasions at least, or three - two, I think. 2010, that's
        when he received his state prison sentence, two to four
        years, violation of the Drug Act, possession with
        intent to deliver, an ungraded felony.
        The fact that he's facing a pending state parole
        violation is not to his benefit. He knew he was on state
        parole when he committed the instant offense, and he
        knew what the state prison was ail about.
        The first offense we have is from June 2-13. He was
        convicted after that in 2014, false identification, a one
        year probation, He has a couple cases pending yet.
        His family situation and background are set forth. That
        was supplemented by the defendant's testimony today.
        We heard about his not-soAvonderfí11 childhood,
        being born Bronx, New York, and later bejng rajsecl
        in Pottstown.


                                   31
          The report also speaks about Melissa Griffin. They have
          been together some two years. She had been employed as
,j.',f•
          Certified Nursing Assistant. She's also the mother of
 I·•
...:J.    children of his, of daughter. Then he has a second child
          by a different lady.
,' 1L,

          The defendant admitted he started using marijuana on a
r·:       daily basis al the age of 15. lie started using Percocet alid
          syrup at the age of 18. He said he used a lot of syrup every
 j(. �


          day, and eventually stopped the Percocet and syrup in
          2013, 2014. In 2007 he was using cocaine and Xanax on
          a daily basis.
          He did graduate from Pottsgrove High School in the
          Pottstown area. He attended the Western Montgomery
          County Technical School for part of the day. There
          were some problems With truancy and
          insubordination and assaultive behavior in school.

          The Court herc is dealing with a defendant, who has,
          Simply stated, led a life oc crime, He had led a life of
          committing rather serious crimes, crimes that pose a
          significant harm and danger to other people and to the
          community, crimes involving addiction, distributing
          heroin, a situation that costs society and the police time
          and money to a considerable degree. As indicated
          previously by this Court, he admits to long-term selling
          of controlled substances for profit.
          It $eemŠ fairly obvious that consecutive sentences are
          certainly justified here. These are a number of separate
          crimes. Most certainly, the separate crime of
          possessing a firearm without a license is the most
          serious offense. I think it's obvious that combing drugs
          and guns makes a dangerous situation more
          dangerous. Involving the situation that he was on state
          parole at the time, that certainly is not a mitigating
          factor. That is something that I think also works


                                       32
: "»,

·t-1
  11
                       against the defendant's argument for all concurrent
 .......               sentences.
-,::ftl

.'
•• v
                      He certainly presents an undue risk of committing
                      new crimes when not incarcerated. Ile has a pattern ol'
.'.r,1
                      that already somewhat established. I Think he
                      presents a clear and present danger of reverting to his
1·� i                 criminal activity when released. Consecutive
;,; � �1

                      sentencing is necessary 10 protect [lie public and
··-,1                 society from e defendant's criminal conduct. There is
                      nothing that has been presented, although I have
                      considered it all, including his childhood and his
                      testimony, that convinces me that a concurrent set or
                      sentences are appropriate. I have reviewed the various
                      factors that I think are supportive or consecutive
                      senrencing. In short, the length and breadth ol' this life
                      ol' crime in
                      the current criminal actiV1ty we are dealing with
                      supports protecting the public through a series of
                      consecutive sentences.

           (Sentencing 12/14/17 pp, 39 - 44. ThiŠ Court provided its rea$ons for the
           sentence it fashioned in Smith's case. Specifically, this Court considered
           the presentence investigation and reports, the testimony of both the
           Commonwealllf$ witnesses and that of Smith, the sentencing guidelines and
           sentencing code. This Court in particular addressed the need for consecutive
           sentencing as opposed to concurrent. Accordingly, this sentence is proper.

                                            CONCLUSION

                     Based on the foregoing analysis, the judgment of sentence imposed
           on December 14, 2016, should be affirmed.




                                                  33
                                      BY THE COURT:

            COURT OF COMMON PLEAS
                                       LOJL;,
                                      WILLIAM R. CARPE r•ER J.
                                      MONTGOMERY COUNTY
                                      PENNSYLVANIA
                                      38"' JUDICIAL DISTRICT


Copies sent on. March 29, 2017
By Interoffice Mail to:
Court Administration
Raymond Roberts, Esquire




                                 34
