J-S74029-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
FREDRICK A. POSTIE,                       :
                                          :
                   Appellant              : No. 1089 EDA 2014

           Appeal from the Judgment of Sentence October 7, 2013,
                   Court of Common Pleas, Carbon County,
              Criminal Division at No. CP-13-CR-0000168-2012

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 30, 2014

       Appellant, Fredrick A. Postie (“Postie”), appeals, pro se, from the

judgment of sentence entered on October 7, 2013 by the Court of Common

Pleas of Carbon County, Criminal Division, following his convictions for one

count of retail theft1 and one count of attempt to commit retail theft.2 For

the reasons that follow, we affirm Postie’s convictions, but vacate his

judgment of sentence and remand for re-sentencing.

       The trial court summarized the facts and procedural history of this

case as follows:

             On July 22, 2011, at approximately 12:05 p.m.,
             Officer Joseph David (hereinafter “Officer David”) of
             the    Mahoning     Township    Police   Department
             responded to a call from [Walmart] regarding a retail


1
    18 Pa.C.S.A. § 3929(a)(1).
2
    18 Pa.C.S.A. §§ 901(a), 3929(a)(1).


*Retired Senior Judge assigned to the Superior Court.
J-S74029-14


          theft. The [Walmart] Loss Prevention Department
          (hereinafter “Loss Prevention) had reported that on
          July 22, 2011 at approximately 2:04 a.m., a total of
          thirteen (13) Apple iPhones had been stolen from the
          electronics section of the store. Each iPhone was
          valued at approximately [$599.00], for a total loss of
          [$8,254.22]. Officer David testified that he received
          surveillance footage from [Walmart] showing the
          theft of the iPhones. He had received phone calls
          from individuals identifying the man in the video as
          [Postie].   Based upon those phone calls, Officer
          David reviewed [Postie]’s driver’s license photo on
          the police JNET system to compare it to the
          surveillance footage. Officer David determined that
          [Postie] was the same individual in the footage
          obtained from Loss Prevention. The initial criminal
          complaint was filed on October 21, 2011, charging
          [Postie] with retail theft of thirteen (13) Apple
          iPhones.

          [Postie] entered a guilty plea on February 4, 2013.
          Prior to sentencing, [Postie] filed a petition to
          withdraw his guilty plea.     [Postie]’s petition was
          granted on June 25, 2013 and the matter was listed
          for a jury trial commencing on August 5, 2013.

          On July 25, 2013, [Postie] filed a “Motion to Exclude
          Videos.” Following oral argument on July 31, 2013,
          this [c]ourt denied [Postie]’s motion. On July 30,
          2013, the Commonwealth filed a “Petition to Amend
          Criminal Information” to charge [Postie] with
          [c]riminal [a]ttempt – [r]etail [t]heft. On July 31,
          2013, after oral argument, this [c]ourt granted the
          Commonwealth’s       petition     and    the  criminal
          information was amended to reflect a count of
          [c]riminal [a]ttempt – [r]etail [t]heft.

          On August 3, 2013, [Postie] executed a waiver of
          counsel form and acknowledged that he had chosen
          to act as his own counsel throughout the jury trial.
          Attorney Joseph V. Sebelin, Jr., Esquire was
          appointed as standby counsel for [Postie]. The jury
          trial commenced on August 5, 2013.          At the



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J-S74029-14


            conclusion of the trial, the jury returned a verdict of
            guilty on [c]ount #1 [r]etail [t]heft – [t]aking
            [m]erchandise and a verdict of guilty on [c]ount #2
            [a]ttempt – [r]etail [t]heft. Following announcement
            of the jury’s verdict, this [c]ourt inquired as to
            whether [Postie] would be requesting a pre-sentence
            investigation. [Postie] stated that he did not wish to
            have a pre[-]sentence investigation report prepared
            and sentencing was deferred until October 7, 2013.

            On October 7 2013, [Postie] was sentenced to make
            restitution to [Walmart] in the sum of [$7,780.00]
            and to undergo imprisonment for a period of not less
            than one (1) year nor more than thirty (30) months,
            from October 7, 2013, in a state correctional
            institution. This sentence was to run consecutive to
            the sentences previously imposed by the Court of
            Common Pleas of Schuylkill County in case number
            CP-54-CR-1311-2011 ([r]etail [t]heft – [t]aking
            [m]erchandise) and by the Court of Common Pleas
            of Northampton County in case number CP-48-CR-
            2304-2012 ([c]onspiracy – [b]urglary).

            [Postie] filed a post-trial motion for relief on October
            17, 2013. Following a hearing on January 8, 2014,
            this [c]ourt denied [Postie]’s post-trial motion. A
            copy of our [o]rder denying [Postie]’s post-trial
            motion was mailed to counsel for the Commonwealth
            and [Postie]’s stand-by trial counsel on January 23,
            2014.     [Postie] was not mailed a copy of the
            aforesaid [o]rder until March 7, 2014. On March 21,
            2014, [Postie] filed his [n]otice of [a]ppeal.

Trial Court Opinion, 5/27/14, at 2-4 (footnote and record citations omitted).3




3
  On the same day Postie filed his notice of appeal, he also filed a petition to
appeal nunc pro tunc based on the trial court’s failure to inform him of the
denial of his post-sentence motions until March 7, 2014. See Petition to
Appeal Nunc Pro Tunc, 3/21/14. On March 27, 2014, the trial court granted
Postie permission to proceed with his appeal nunc pro tunc. See Trial Court
Order, 3/27/14.


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      On appeal, Postie raises the following three issues for our review and

determination:

             1) Did the [trial court] err in denying exclusion of
             two videos introduced by the Commonwealth and
             used as evidence of prior bad acts in conjunction
             with their intended purpose, that of identification,
             where the evidence would be considered cumulative?

             2) Is “[c]arry [a]way” an essential element to the
             crime of [r]etail [t]heft and is the [s]tatute [v]oid for
             [v]agueness as it pertains to the facts of this case?
             If so, did the [trial court] err by denying [Postie]’s
             [m]otion for [d]irected [v]erdict of [a]cquittal as a
             result?

             3) Did the [trial court] abuse         its discretion and
             render an unreasonable sentence        when it sentenced
             [Postie] strictly on the severity of   the offense and by
             not articulating its reasoning         for the sentence
             imposed?

Postie’s Brief at 5.

      For his first issue on appeal, Postie argues that the trial court erred by

denying his pre-trial motion in limine seeking to exclude two Walmart

security videos from evidence.        Id. at 11-13.       Postie claims that the

Commonwealth offered four videos, revealing the following:

             One video depicted an individual opening, removing,
             [and] placing items from a display case on top of the
             display case; two videos showed the same individual
             at two separate times, pushing a shopping cart
             through the store with merchandise inside; the
             fourth video showed the same individual exiting via
             the main entrance, carrying no items.




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J-S74029-14


Id. at 11. Postie sought to exclude the two videos depicting an individual

pushing a shopping cart containing merchandise through the store. Id. at

11-13.

     “When reviewing the denial of a motion in limine, we apply an

evidentiary abuse of discretion standard of review.”     Commonwealth v.

Stokes, 78 A.3d 644, 654 (Pa. Super. 2013), appeal denied, 89 A.3d 661

(Pa. 2014). Our Court has held that “[a]n abuse of discretion is not merely

an error of judgment, but is rather the overriding or misapplication of the

law, or the exercise of judgment that is manifestly unreasonable, or the

result of bias, prejudice, ill-will or partiality, as shown by the evidence of

record.” Commonwealth v. Antidormi, 84 A.3d 736, 749-50 (Pa. Super.

2014) (quotations and citations omitted), appeal denied, 95 A.3d 275

(Pa. 2014).   “An abuse of discretion may result where the trial court

improperly weighed the probative value of evidence admitted against its

potential for prejudicing the defendant.”     Id. (quotations and citations

omitted).

     Postie makes two arguments in support of his claim that the trial court

erred in not excluding the two videos at issue. See Postie’s Brief at 11-13.

First, Postie argues that “these two videos had the … potential to prejudice

[him] by introducing inferential evidence of prior wrongs or bad acts[.]” Id.

Postie asserts that the videos caused the jury to infer that he had prior

convictions stemming from the theft of the merchandise observed in the two



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J-S74029-14


videos, even though he was not charged with stealing that particular

merchandise. See id.

      We conclude that Postie has waived this argument on appeal.

“[W]here an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful     fashion   capable   of    review,   that   claim   is   waived.”

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations

omitted). Here, Postie does not cite any authority for the proposition that

the introduction of the two videos at issue would be improper evidence of

prior bad acts and convictions. See Postie’s Brief at 11-13. Postie does not

cite to Rule 404(b) of the Pennsylvania Rules of Evidence, which addresses

prior bad acts and conviction evidence. See id. Postie also does not explain

how these two videos, which show him pushing a shopping cart containing

merchandise in Walmart contemporaneous to the time that he broke into the

display case containing the iPhones, were evidence of a prior bad act or

conviction.   Accordingly, Postie has failed to develop this argument in any

meaningful fashion capable of review, and thus, has waived this claim. See

Johnson, 985 A.2d at 924.

      Second, Postie contends that the two videos he sought to exclude

represented needlessly cumulative evidence because the Commonwealth

only sought to introduce the two videos to identify him, the remaining videos

that the Commonwealth introduced were sufficient to identify him, and he



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J-S74029-14


was willing to stipulate that he was the individual in all of the videos.

Postie’s Brief at 11-13.

      Regarding the admission of evidence, this Court has stated the

following:

             The threshold inquiry with admission of evidence is
             whether the evidence is relevant. “Evidence is
             relevant if it logically tends to establish a material
             fact in the case, tends to make a fact at issue more
             or less probable, or supports a reasonable inference
             or presumption regarding the existence of a material
             fact.” Commonwealth v. Spiewak, [] 617 A.2d
             696, 699 ([Pa.] 1992). In addition, evidence is only
             admissible where the probative value of the evidence
             outweighs its prejudicial impact. Commonwealth
             v. Story, [] 383 A.2d 155 (Pa. 1978).

Stokes, 78 A.3d at 654 (quoting Commonwealth v. Robinson, 721 A.2d

344, 350 (Pa. 1998)). This Court has further explained,

             Otherwise relevant evidence may be excluded if its
             probative value is outweighed by its potential for
             prejudice. “The probative value of the evidence
             might be outweighed by the danger of unfair
             prejudice, confusion of the issues, misleading the
             jury, undue delay, pointlessness of presentation, or
             unnecessary presentation of cumulative evidence.”

Antidormi, 84 A.3d at 750 (quoting Commonwealth v. Page, 965 A.2d

1212, 1220 (Pa. Super. 2009)); see also Pa.R.E. 403. For cumulative and

corroborative evidence, our Court has stated the following:

             Evidence may be excluded if its probative value is
             outweighed by the “needless presentation of
             cumulative evidence.”   Pa.R.E. 403.    We define
             cumulative evidence as “additional evidence of the
             same character as existing evidence and that



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J-S74029-14


             supports a fact established by the existing evidence.”
             Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989
             (Pa. Super. 2007) (quoting Black’s Law Dictionary,
             Seventh Edition, at 577), appeal denied, [] 944 A.2d
             756 ([Pa.] 2008). Evidence that strengthens or
             bolsters existing evidence is corroborative evidence;
             we have previously explained that corroborative
             evidence is not cumulative evidence. See id.

Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa. 2012).

      Assuming arguendo that Postie is correct and the two videos he sought

to exclude were needlessly cumulative, we conclude that any such error on

the part of the trial court was harmless.    Harmless error exists, inter alia,

where “the erroneously admitted evidence was merely cumulative of other

untainted evidence which was substantially similar to the erroneously

admitted evidence.”        Commonwealth v. Reese, 31 A.3d 708, 719

(Pa. Super. 2011).

      Here, if the alleged erroneously admitted videos were needlessly

cumulative, then they were cumulative of other untainted evidence. Postie

readily admits that he was the individual observed in the first video

referenced above breaking into the display case and removing the thirteen

stolen Apple iPhones from the case.      See N.T., 8/5/13, at 25.     Thus, we

conclude that any alleged error by the trial court in admitting the two videos

at issue would have been harmless.       Accordingly, this argument does not

entitle Postie to any relief.




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J-S74029-14


      In his second issue on appeal, Postie raises three arguments relating

to the retail theft statute, 18 Pa.C.S.A. § 3929(a)(1). See Postie’s Brief at

14-19.   First, Postie asserts that “takes possession of” and “carries away”

are “two distinct and separate elements” of the retail theft statute and

therefore, the statute requires the Commonwealth to prove beyond a

reasonable doubt that he “carried away” the thirteen Apple iPhones from the

electronics department or the store.      See id. at 14-18.     Second, Postie

contends that the evidence was insufficient to sustain his conviction for retail

theft because there was no evidence that he “carried away” the thirteen

Apple iPhones from the electronics department or the store. See id. at 17-

18.   Third, Postie argues that the trial court did not instruct the jury that

“carries away” was an essential element of retail theft. See id. at 18-19.

      We begin Postie’s second issue by addressing his challenge to the

sufficiency of the evidence.4 In reviewing a challenge to the sufficiency of

the evidence, our standard of review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
            evidence.   Evidence will be deemed sufficient to
            support the verdict when it establishes each material
            element of the crime charged and the commission


4
   Because we conclude that the evidence was sufficient to establish that
Postie both “took possession of” and “carried away” the thirteen Apple
iPhones, we need not address Postie’s argument that the statute requires
evidence of both of these elements.


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J-S74029-14


            thereof by the accused, beyond a reasonable doubt.
            Nevertheless, the Commonwealth need not establish
            guilt to a mathematical certainty. Any doubt about
            the defendant’s guilt is to be resolved by the fact
            finder unless the evidence is so weak and
            inconclusive that, as a matter of law, no probability
            of fact can be drawn from the combined
            circumstances.

            The Commonwealth may sustain its burden by
            means     of     wholly    circumstantial    evidence.
            Accordingly, [t]he fact that the evidence establishing
            a    defendant’s   participation   in   a   crime    is
            circumstantial does not preclude a conviction where
            the evidence coupled with the reasonable inferences
            drawn therefrom overcomes the presumption of
            innocence. Significantly, we may not substitute our
            judgment for that of the fact finder; thus, so long as
            the evidence adduced, accepted in the light most
            favorable to the Commonwealth, demonstrates the
            respective elements of a defendant’s crimes beyond
            a reasonable doubt, the appellant’s convictions will
            be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).

      Section 3929(a)(1) of the Crimes Code states the following:

            (a) Offense defined.--A person is guilty of a retail
            theft if he:

                  (1) takes possession of, carries away, transfers
                  or causes to be carried away or transferred,
                  any merchandise displayed, held, stored or
                  offered for sale by any store or other retail
                  mercantile establishment with the intention of
                  depriving the merchant of the possession, use
                  or benefit of such merchandise without paying
                  the full retail value thereof;

18 Pa.C.S.A. § 3929(a)(1).



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J-S74029-14


      The sole element of section 3929(a)(1) that Postie argues the

Commonwealth did not prove is that he carried away the thirteen Apple

iPhones from the electronics department or the store. Postie’s Brief at 17-

18.   We conclude that there is sufficient evidence in this case that Postie

both took possession of and carried away the thirteen Apple iPhones from

the store and therefore committed retail theft. Postie readily admits that he

was the individual observed in the video breaking into the display case and

removing the thirteen stolen Apple iPhones from the case. See id. at 11-

12; N.T., 8/5/13, at 25.     Additionally, Austin Diehl, an Asset Protection

Associate at the Walmart store in question testified that Walmart never

recovered the thirteen Apple iPhones and that Walmart never sold them

from a different department in the store. N.T., 8/5/13, at 30, 33-34. Our

standard of review requires us to evaluate the record in the light most

favorable   to   the   Commonwealth     as   the   verdict   winner     and   the

Commonwealth may sustain its burden of proof by means of circumstantial

evidence.   See Franklin, 69 A.3d at 722-23.       Postie admits that he took

possession of the merchandise and the evidence established that it was

never again recovered or sold by Walmart.          Since the iPhones were no

longer in the Walmart store, the logical inference is that the merchandise

acquired by Postie by breaking into the display case was removed from the

store by him. Thus, Postie’s sufficiency of the evidence claim fails.




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      For his third argument in his second issue, Postie challenges the trial

court’s jury instructions, arguing that the trial court did not instruct the jury

that “carries away” was an essential element of retail theft. Postie’s Brief at

18-19.   When assessing a trial court’s jury instructions, we adhere to the

following standard.

            [W]hen evaluating the propriety of jury instructions,
            this Court will look to the instructions as a whole,
            and not simply isolated portions, to determine if the
            instructions were improper. We further note that, it
            is an unquestionable maxim of law in this
            Commonwealth that a trial court has broad discretion
            in phrasing its instructions, and may choose its own
            wording so long as the law is clearly, adequately,
            and accurately presented to the jury for its
            consideration. Only where there is an abuse of
            discretion or an inaccurate statement of the law is
            there reversible error.

Antidormi, 84 A.3d at 754 (quoting Commonwealth v. Trippett, 932 A.2d

188, 200 (Pa. Super. 2007)).      We conclude that Postie’s claim is without

merit.   The trial court plainly included the term “carried away” in its

instructions to the jury for Postie’s charge of retail theft.   N.T., 8/5/13, at

119. Thus, Postie is not entitled to any relief for his second issue on appeal.

      For his final issue on appeal, Postie challenges the discretionary

aspects of his sentence. Postie’s Brief at 20-26. This Court does not review

such issues as a matter of right. “An appellant must satisfy a four-part test

to invoke this Court’s jurisdiction when challenging the discretionary aspects




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of a sentence.”   Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265

(Pa. Super. 2014). The appellant must satisfy all of the following:

            (1) the appellant preserved the issue either by
            raising it at the time of sentencing or in a post[-
            ]sentence motion; (2) the appellant filed a timely
            notice of appeal; (3) the appellant set forth a concise
            statement of reasons relied upon for the allowance of
            his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
            appellant raises a substantial question for our
            review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014).        A substantial question

exists when, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

      Here, Postie preserved his discretionary aspects of sentencing issue by

raising it in a post-sentence motion.        See Post-Trial Motion for Relief,

10/24/13, ¶¶ 16-17.    Postie also filed a timely notice of appeal.   Further,

Postie set forth a concise statement of reasons relied upon for the allowance

of his appeal pursuant to Rule 2119(f). See Postie’s Brief at 20.

      Thus, we must determine whether Postie’s discretionary aspect of

sentencing claims raise a substantial question for our review. First, Postie

asserts that the trial court failed to state its reasons on the record for the

sentence that it imposed. Id. at 20-26. A claim that the trial court failed to




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sufficiently state on the record its reason for the sentence that it imposed

raises a substantial question for our review. Commonwealth v. Malovich,

903 A.2d 1247, 1252-53 (Pa. Super. 2006); Commonwealth v. Simpson,

829 A.2d 334, 338 (Pa. Super. 2003). Second, Postie contends that the trial

court did not consider the factors of section 9721(b) of the Sentencing Code

in sentencing him. Postie’s Brief at 20-26. A claim that the trial court did

not consider the factors of section 9721(b) in sentencing him likewise raises

a substantial question. Commonwealth v. Cartrette, 83 A.3d 1030, 1042-

43 (Pa. Super. 2013) (en banc); Commonwealth v. Dodge, 77 A.3d 1263,

1272 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). Because

Postie has complied with the technical requirements for consideration of a

challenge to the discretionary aspects of a sentence, we will consider his

claim on its merits.

      Our standard of review when considering discretionary aspects of

sentencing claims is as follows:

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge. The standard employed
            when reviewing the discretionary aspects of
            sentencing is very narrow. We may reverse only if
            the sentencing court abused its discretion or
            committed an error of law. A sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            the appellant must establish, by reference to the
            record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for
            reasons of partiality, prejudice, bias or ill will, or



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            arrived at a manifestly unreasonable decision. We
            must accord the sentencing court’s decision great
            weight because it was in the best position to review
            the defendant’s character, defiance or indifference,
            and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

      We conclude that the sentencing court abused its discretion in

sentencing Postie.    Section 9721(b) of the Sentencing Code states, in

pertinent part, the following:

            (b) General standards.-- … the court shall follow
            the general principle that the 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. … In every case in which the
            court imposes a sentence for a felony or
            misdemeanor, modifies a sentence, resentences an
            offender following revocation of probation, county
            intermediate punishment or State intermediate
            punishment or resentences following remand, the
            court shall make as a part of the record, and disclose
            in open court at the time of sentencing, a statement
            of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b). Thus, “a sentencing court must state on the record

its reasons for imposing sentence.”           Malovich, 903 A.2d at 1253.

Additionally, “sentencing is individualized” as the sentencing court must

“impose a sentence 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.’”



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Commonwealth v. Walls, 926 A.2d 957, 962-63 (Pa. 2007) (quoting 42

Pa.C.S.A. § 9721(b)).

      Here, the certified record on appeal reveals the following. 5       At his

sentencing hearing, the sentencing court began by asking Postie if there was

anything he would like the court to consider prior to imposing a sentence.

N.T., 10/7/13, at 2. After Postie answered no, his standby counsel informed

the sentencing court of Postie’s prior record score and offense gravity score.

Id. at 2-3. The Commonwealth then informed the sentencing court of the

sentence it sought and the amount of restitution that Walmart requested.

Id. at 3-4. The sentencing court then informed Postie of his sentence and

proceeded directly to providing him with his post-sentence rights. Id. at 4-

7. At no point did the sentencing court state on the record its reasons for

the sentence that it imposed or indicate that it considered 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. See id. at 2-9; see also 42 Pa.C.S.A. § 9721(b). Accordingly,

we must vacate Postie’s sentence and remand for re-sentencing.             Upon



5
   Notably, “[t]he sentencing judge can satisfy the requirement that reasons
for imposing sentence be placed on the record by indicating that he or she
has been informed by the pre-sentencing report; thus properly considering
and weighing all relevant factors.” Commonwealth v. Fowler, 893 A.2d
758, 767 (Pa. Super. 2006) (quoting Commonwealth v. Boyer, 856 A.2d
149, 154 (Pa. Super. 2004)). However, in this case, the sentencing court
did not review a pre-sentence report because Postie waived his right to a
pre-sentence investigation. See N.T., 8/5/13, at 143-44.


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remand for re-sentencing, the trial court is free to impose any legal sentence

it deems appropriate so long as it sufficiently states its reasons on the record

for the sentence imposed and indicates that it has considered the factors set

forth in section 9721(b).

      Judgment of sentence affirmed in part and vacated in part.           Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2014




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