J-A14024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TASAI BETTS

                            Appellant                No. 1275 MDA 2015


             Appeal from the Judgment of Sentence May 14, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0001004-2014
                           CP-22-CR-0003339-2013


BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 30, 2016

        Tasai Betts appeals from the judgment of sentence imposed on May

14, 2015, in the Court of Common Pleas of Dauphin County, made final by

the denial of post-sentence motions on June 23, 2015.       On October 29,

2014, at Docket No. CP-22-CR-0001004-2014 (“Docket No. 1004-2014”), a

jury convicted Betts of attempted criminal homicide,1 robbery,2 and related

offenses for a shooting incident that occurred on June 13, 2013. On March

2, 2015, in a separate, but related, matter at Docket No. CP-22-CR-

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 901(a).
2
    18 Pa.C.S. § 3701(a)(1)(i).
J-A14024-16


0003339-2013 (“Docket No. 3339-2013”), a jury convicted Betts of

aggravated assault3 and other offenses for an accident involving a police

chase on June 22, 2013. With respect to both dockets, the court sentenced

Betts to an aggregate term of 21-42 years’ imprisonment, plus 15 years of

probation. On appeal, Betts raises evidentiary and discretionary aspects of

sentencing claims.       For the reasons below, we affirm Betts’s judgment of

sentence.

       The trial court set forth the factual history in its June 23, 2015,

memorandum, which disposed of Betts’s post-sentence motions:

              At trial, the victim, Sgt. Kenneth Durbin testified that he
       fell asleep in his car outside a friend’s home around 7:30 P.M. A
       friend had driven his car home after work and after stopping at a
       bar for about two beers. Sgt. Durbin was not comfortable
       driving as he was tired and had some drinks so he let his friend
       drive. He intended to take a short nap before driving on, but
       instead fell asleep for several hours. Ibraheem Muhammad, Sgt.
       Durbin’s friend testified that Sgt. Durbin had driven him home a
       couple times before, but that he was not aware of any other
       times that Sgt. Durbin would have been in the neighborhood.

             The next thing Sgt. Durbin recalled was being woken up
       around 1 A.M. when an individual wearing a hood over his face
       was standing over him demanding his money. The man was
       accompanied by about 3 others who were standing near the car
       and who did not make contact with the car.         Sgt. Durbin
       admitted that while he was asleep he did not know who had
       been through the neighborhood or milling around his car at all.

             Sgt. Durbin turned away when he felt a hand grasping his
       shirt. At that point he realized it was [] not a friend and he
       cursed at his assailant and tried to get him off. Immediately, he
____________________________________________


3
    18 Pa.C.S. § 2702(a)(2).



                                           -2-
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     heard a pop, saw a flash and felt a bullet go into his abdomen.
     He saw part of the gun at the time of the incident, but could not
     identify a particular gun at trial.

           He was shot 3 times at close range. He then made a large
     push at his shooter and kicked him back, but did not knock him
     over. Sgt. Durbin dove into his car and was shot twice on the
     way in. He turned the car on and reversed it and then drove
     forward trying to escape. Sgt. Durbin testified that the three
     people with the shooter scattered without touching the car when
     he reversed. The shooter’s face remained covered by the hood
     and Sgt. Durbin admitted that he could not recognize with
     certainty the person who shot him that night.

            Sgt. Durbin started jamming on his horn, hoping that
     someone might hear it and help him. No one came to his aid.
     Kathy Fearnbaugh, a neighbor, testified that she heard gun
     shots, but did not look out the window for a couple of minutes.
     She then heard someone laying on the horn so she called 9-1-1.
     She recalled hearing people running and saying something like
     “let’s get out of here.” She did not see any gunshots or see
     anyone running.

           Sgt. Durbin started to drive to a nearby gas station for
     help. He got out of his car, said he’d been shot and people
     start[ed] screaming and calling 9-1-1. An ambulance arrived
     and the medics started to administer first aid. Sgt. Durbin was
     transported to the hospital where he had several surgeries over
     the course of the next several months. Several bullet fragments
     remain in his lungs and torso.

             He was able to give a description of his attacker to
     Detective Krokos when he visited Sgt. Durbin at home sometime
     after he was released. That description was “the individual was
     about my height, slender build, 16-20. His build reminded me of
     Steve Urkel.” He was shown a photo array and while he did not
     initially identify someone on it, he ultimately did identify [Betts],
     admitting he was not 100% sure of the accuracy.

           [Betts] was unknown to Sgt. Durbin at the time of the
     attack and had never been in his car, nor touched the outside of
     his car.




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J-A14024-16


           Officer Brian Henry of the Harrisburg Police Department
     was on duty that night. He received a call about the shooting.
     Officer Henry first proceeded to 19th and State Streets where
     the shooting occurred but was redirected to the gas station at
     16th and State Streets where the victim presented himself.

            Officer Henry observed Sgt. Durbin laying [in] the fetal
     position next to his car with gunshot wounds all over his body.
     Sgt. Durbin was unable to provide much information as he
     seemed to be in a state of shock. Officer Henry’s primary
     responsibility was to stay with the officer processing the scene
     that night. At no point did anyone breach the police tape around
     Sgt. Durbin’s car nor come into contact with his car. However,
     Officer Henry was unsure of how many civilians were present
     that night. The vehicle was then towed to the police lot.

            Officer Christopher Thomas, also of the Harrisburg Police
     Department, was on duty as well. He also heard the call about
     the shooting and went to the gas station where he found the
     victim bleeding, with a weak pulse and having difficulty
     breathing. He never saw any civilians touch the vehicle while he
     was there helping stabilize the victim. Officer Thomas then
     began to look for the crime scene. He received word of a phone
     call indicating that the shooting happened near the 1700 block of
     Miller Street.

           Officer Thomas located a watch that Sgt. Durbin said he
     lost as well as several bullet casings in the 1700 block of Miller
     Street. Officer Duane Pyles processed the scene.

           Officer Pyles is also a member of the Harrisburg Police
     Department. He was on duty on the night of the shooting and
     took the forensics call. He arrived at the scene and began
     processing and putting up the crime scene tape. He never saw
     anyone come into contact with the vehicle while he was at the
     scene. Officer Pyles called for a tow truck to tow the vehicle to
     the station and then the secure lot.

            He also processed the crime scene in the 1700 block of
     Miller Street. The casings he found there appeared to be the
     same as the casing he found at the gas station scene, though
     this was based solely upon a visual inspection and not upon any
     scientific testing. From his experience, this type of bullet was
     from a .22 caliber.

                                   -4-
J-A14024-16



             Investigator Karen Lyda, of the Harrisburg Police
       Department, is a forensic investigator. She was qualified as an
       expert in her field for testimony. She processed the vehicle and
       took fingerprints in this particular case, however she did not go
       to the scene. Investigator Lyda found two .22 caliber Remington
       casings – one in the rear driver’s door area and one on the seat
       on the rear driver’s side.

             She found latent prints in and on the car. Sgt. Durbin’s
       prints were discovered on the inside of the driver’s window.
       Further, a partial palm print was found on the outside of the car;
       it was identified as [Betts’s] palm print. She also processed a
       gun and magazine. She was unable to find a latent print on the
       gun, but testified that as guns are made of metal, this is not
       unusual. Investigator Lyda indicated that there is no way to tell
       when a print was made.

             Officer Eric Moyer of the Swatara Township Police
       Department testified about an auto accident on June 22, 2013. [4]
       [Betts] was an occupant of the vehicle that crashed and inside
       the vehicle there was a .22 caliber handgun. Officer Moyer
       secured the gun, which had one round in its chamber and
       several rounds in the magazine, and turned it over to Highspire
       Police.

              Officer Ronald Weber of the Highspire Police Department
       also testified as to the June 22 events. He was called into duty
       to respond to the car accident. He received the gun from
       Swatara Police. He removed the bullets from the magazine and
       saw that there were four bullets, therefore there was a total of
       five bullets with the gun, the four in the magazine and the one in
       the chamber that Officer Moyer had cleared. He also noted that
       the gun’s serial number had been obliterated to try to prevent
       identification. The weapon was taken to the lab for further
       testing.

             Ultimately, the Harrisburg Police Department contacted
       Officer Weber expressing an interest in the gun. The gun was
____________________________________________


4
  This incident is at Docket No. 3339-2013. Police officers attempted to pull
over the car when Betts fled away and crashed the car.



                                           -5-
J-A14024-16


     turned over to the Pennsylvania State Police lab by both
     departments so that both got the testing results.

           Robert Parker Jr., of Harrisburg, testified that he knew
     [Betts] and that he was familiar with handguns. He recalled
     seeing the gun in [Betts’s] possession in May of 2013.

            Janel Williams, of Harrisburg, testified that she was in the
     vehicle at the time of the accident and that [Betts] was driving.
     She recalled seeing the gun in his possession and hearing him
     refer to it as his gun.

           Corporal David Krumbine of the Pennsylvania State Police
     is a firearm and tool mark examiner.        His duties involve
     examining firearms and determin[ing] their make, model,
     caliber, serial number, functionality and examining discharged
     components and comparing them to questioned firearms. He
     was qualified as an expert in firearm and tool mark examining.
     He examined the gun from the car accident as well as the
     bullets. He also examined the shell casings from the shooting.
     He compared the discharged cartridges to the gun. He did
     several test fires of the gun. Based upon his examination, he
     determined that the bullets found on Miller Street and in Sgt.
     Durbin’s car were fired from the gun found following the car
     accident. There were three other discharged bullets that he
     could not identify as having come from that gun as they were
     too mutilate[ed]. Based upon the labels of the evidence bags,
     those bullets came from Sgt. Durbin’s body. Those bullets also
     appeared to be the same type of bullet as was found in the gun
     and the car.

            Detective Christopher Krokos is assigned to the Criminal
     Investigation Division of the Harrisburg Police.         The case
     involving Sgt. Durbin’s shooting was assigned to him. About a
     week and a half after the shooting, Det. Krokos went to[] Sgt.
     Durbin’s home to talk to him about the incident. Sgt. Durbin’s
     statement was consistent with his in-court testimony. He also
     had Sgt. Durbin view a photo array. Sgt. Durbin indicated that
     the photo of [Betts] closely resembled the person who shot him,
     but that he was not one hundred percent certain because of the
     hood. As Sgt. Durbin was not one hundred percent sure of the
     identification, Det. Krokos continued his investigation.




                                    -6-
J-A14024-16


              At that point, Det. Krokos became aware of the car
        accident that [Betts] was in several days after the shooting. He,
        along with Investigator Lyda, decided to contact Highspire Police
        and ask them to send the gun to PSP so they could share
        results. The results took quite some time to get back and then,
        on October 10, 2013, Det. Krokos spoke with [Betts].

               Det. Krokos explained that the gun ballistics matched the
        bullets from Sgt. Durbin. [Betts’s] palm print was on Sgt.
        Durbin’s car and [Betts] was found in the car with the gun.
        [Betts] told Det. Krokos that he did not know Sgt. Durbin, but
        that the gun was his. Then he said the gun was given to him by
        someone. Per the docket, [Betts’s] birth day is March 7, 1996,
        so he would be roughly 17 at the time of the shooting. In
        Pennsylvania, one must be 21 years old to get a license to carry
        a firearm.

Trial Court Opinion, 6/23/2015, at 3-9 (record citations omitted).

        With respect to Docket No. 1004-2014, an initial two-day jury trial

began on October 21, 2014. However, a mistrial occurred on October 22,

2014.      The trial court expounded on the subsequent procedural history as

follows:

        At that time, Robert Parker Jr. testified about having seen
        [Betts] with the gun that he was alleged to have used in
        shooting Sgt. Durbin prior to the day of the shooting. On cross-
        examination Mr. Parker testified that he had seen the gun as it
        was pointed at his head. The Court tried to direct him away
        from using that language by asking if [Betts] had shown him the
        gun, but he corrected the court to indicate that it was pointed at
        his head. At sidebar defense counsel moved for a mistrial based
        upon this testimony and explained that it was related to a
        pending robbery charge. Ultimately, after reviewing what he
        was permitted to say with the witness, that mistrial was granted.

              Subsequently, a trial was held on October 28-29. Again,
        Mr. Parker testified that he saw [Betts] in possession of the gun.
        Upon cross-examination, he indicated that he did not recall what
        he told police as the gun was pointed at his head. Again, trial
        was stopped, the jury was sent out and [defense counsel]

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J-A14024-16


       motioned for a mistrial based on evidence of prior bad acts being
       admitted in contravention of Pa.R.E. 404(b).                    The
       Commonwealth argued that the testimony was permitted for
       identification purposes. Ultimately, the Court determined that
       the mistrial would be denied but that the jury would be
       instructed about the limits for which they could utilize Mr.
       Parker’s testimony – that is, it could [] be used for identification
       purposes. At the time of the charge [the trial c]ourt did use a
       limiting instruction as follows:

              “You heard testimony from Mr. Parker, who testified earlier
       this morning. His testimony should only be considered by you
       for the limited purposes of identification of either Mr. Betts or
       the firearm. And you’ll use the same criteria I gave you as to
       testimony and credibility.”

Trial Court Opinion, 8/31/2015, at 2-3 (record citations omitted).

       The jury convicted Betts of attempted homicide, robbery, aggravated

assault, carrying a firearm without a license, and possession of a firearm by

a minor.5      The court originally sentenced Betts on January 5, 2015.

However, he filed a post-sentence motion, arguing his sentence should be

modified because the aggravated assault charge merged with the attempted

homicide charge for sentencing purposes, and he asked for an arrest of

judgment. On February 26, 2015, the court granted the motion as to the

modification of sentence but denied the arrest of judgment request. On May

14, 2015, the court imposed the following sentence:        (1) ten to 20 years’

incarceration for the attempted homicide conviction; (2) a consecutive term

of five to ten years’ imprisonment for the robbery offense; (3) a consecutive
____________________________________________


5
   18 Pa.C.S. §§ 901(a), 3701(a)(1)(i), 2702(a)(2), 6106(a)(1), and
6110.1(a), respectively.



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J-A14024-16


term of two to four years’ incarceration for the carrying a firearm without a

license violation; and (4) a consecutive term of five years’ probation for the

possession of a firearm by a minor violation.6      Betts filed another post-

sentence motion, which was denied on June 23, 2015.

       With regard to Docket No. 3339-2013, on March 2, 2015, a jury

convicted Betts of aggravated assault, four counts of reckless endangerment

of another person (“REAP”), possession of a firearm with manufacturer

number altered, possession of a firearm by a minor, carrying a firearm

without a license, fleeing and eluding, possession of a controlled substance,

possession of drug paraphernalia, and several summary offenses.7 On May

14, 2015, the court sentenced Betts as follows:      (1) four to eight years’

incarceration for the aggravated assault conviction; (2) a consecutive term

of four years’ probation for all four counts of REAP; (3) a consecutive term of

two years’ probation for the firearm with an altered number violation; (4) a

consecutive term of two years’ probation for the possession of firearm by a

minor violation; and (5) a consecutive term of two years’ probation for the

carrying a firearm without a license violation.     Betts filed post-sentence

motions, which were denied on June 23, 2015.
____________________________________________


6
  All counts were to run consecutively to the sentences imposed at Docket
No. 3339-2013.
7
   18 Pa.C.S. §§ 2702(a)(2), 2705, 6110.2(a), 6110.1(a), 6106(a)(1), 75
Pa.C.S. § 3733(a), 35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
The jury found him not guilty of attempted criminal homicide.



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      On July 23, 2015, Betts filed a notice of appeal with respect to both

dockets.   Four days later, the trial court ordered Betts to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Betts filed a concise statement on August 18, 2015. The trial court issued

an opinion pursuant to Pa.R.A.P. 1925(a) on August 31, 2015.

      In his first issue, Betts contends the trial court abused its discretion by

refusing to grant a mistrial at his second trial after one of the witnesses,

Parker, divulged certain prior bad act evidence that was previously

determined to be inadmissible at Betts’s first trial and resulted in a mistrial.

Specifically, Betts notes Parker was limited to stating that he saw Betts in

possession of the gun two weeks prior to the shooting at issue and

“[d]espite clear admonitions to Robert Parker regarding his conduct during

cross-examination, he twice violated the [trial court]’s exclusionary order.”

Betts’s Brief at 45. Betts points out Parker violated the exclusionary rule at

the first trial when Parker testified that Betts pointed the gun at him and a

mistrial resulted due to the prejudicial effect of the testimony. He states:

“Under almost identical circumstances at the second trial, the trial court

failed to find such prejudice.”   Id.   Betts asserts the court’s rationale for

denying a second mistrial cannot withstand scrutiny because:         (1) even if

the testimony was minimal, the “whole purpose of moving in limine to

exclude inadmissible evidence is to prevent any reference to such evidence;”

(2) the curative instruction was insufficient; and (3) “[d]efense counsel was


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J-A14024-16


not at fault in eliciting Robert Parker’s non-responsive answer.” Id. at 47-48

(emphasis removed).

       Initially, we note that to the extent Betts argues there was a violation

of the trial court’s ruling on the pre-trial motion in limine at the first trial, we

find he appears to have waived this claim because he did not raise it in his

concise statement and the trial court did not address it in its opinion.8

“[T]he grant of a new trial ‘wipes the slate clean,’ see Commonwealth v.

Mulholland, 549 Pa. 634, 652, 702 A.2d 1027, 1035–36 (1997), so that a

previous court’s ruling on the admissibility of evidence generally does not

bind a new court upon retrial, see Commonwealth v. Hart, 479 Pa. 84, 86,

387 A.2d 845, 847 (1978)[.]” Commonwealth v. Paddy, 800 A.2d 294,

311 (Pa. 2002). Therefore, even if preserved on appeal, Betts’s argument

would have no merit as he did not properly preserve the issue in a

subsequent motion in limine.

       Turning to the remainder of his argument, we are guided by the

following:

          With regard to the admission of evidence, we give the trial
          court broad discretion, and we will only reverse a trial
          court’s decision to admit or deny evidence on a showing
          that the trial court clearly abused its discretion. An abuse
          of discretion is not merely an error in judgment, but an
          overriding misapplication of the law, or the exercise of
____________________________________________


8
   See Concise Statement, 8/18/2015 (“This Honorable Court erred in
denying Appellant’s motion for a mistrial where prior bad acts evidence was
improperly admitted in contravention of Pa.R.E. 404(b)”).



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J-A14024-16


        judgment that is manifestly unreasonable, or the result of
        bias, prejudice, ill-will or partiality, as shown by the
        evidence of the record.

     Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012)
     (citations and quotation marks omitted).

     “Relevance is the threshold for admissibility of evidence.”
     Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super.
     2015); see also Pa.R.E. 402. “Evidence is relevant if it has any
     tendency to make a fact more or less probable than it would be
     without the evidence[,] and the fact is of consequence in
     determining the action.” Pa.R.E. 401; see also Tyson, 119
     A.3d at 358 (stating that “[e]vidence 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 a material fact.”).

     “The court may exclude relevant evidence if its probative value is
     outweighed by a danger of . . . unfair prejudice[.]” Pa.R.E. 403;
     see also Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa.
     Super. 2012) (stating that even when evidence meets the
     relevance requirements, “such evidence may still be excluded
     where its probative value is outweighed by the danger of unfair
     prejudice.”).

        However, [e]vidence will not be prohibited merely because
        it is harmful to the defendant. [E]xclusion is limited to
        evidence so prejudicial that it would inflame the jury to
        make a decision based on something other than the legal
        propositions relevant to the case[.] This Court has stated
        that it is not required to sanitize the trial to eliminate all
        unpleasant facts from the jury’s consideration where those
        facts are relevant to the issues at hand[.]

     Kouma, 53 A.3d at 770 (citation omitted); see also Pa.R.E. 403
     cmt. (defining “unfair prejudice” as “a tendency to suggest a
     decision on an improper basis or to divert the jury’s attention
     away from its duty of weighing the evidence impartially.”).

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (citation

omitted).


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      Pennsylvania Rule of Evidence 404 provides, in relevant part:

      (b) Other crimes, wrongs, or acts.

      (1) Evidence of other crimes, wrongs, or acts is not admissible to
      prove the character of a person in order to show action in
      conformity therewith.

      (2) Evidence of other crimes, wrongs, or acts may be admitted
      for other purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity or absence of mistake or
      accident.

      (3) Evidence of other crimes, wrongs, or acts proffered under
      subsection (b)(2) of this rule may be admitted in a criminal case
      only upon a showing that the probative value of the evidence
      outweighs its potential for prejudice.

Pa.R.E. 404 (b)(1)-(3).

      Here, the trial court provided the following reasoning for admitting

Parker’s testimony and denying Betts’s request for a mistrial:

             The prosecution initially filed a motion in limine to permit
      evidence of prior bad acts related to both the robbery of Mr.
      Parker and a car chase that occurred after the shooting to prove
      identity. Indeed, evidence of prior bad acts is admissible to help
      prove the identity of the perpetrator of a crime; however, the
      probative value must outweigh any prejudicial effect.
      Commonwealth v. Lockcuff, 2002 PA Super 388, ¶ 12, 813
      A.2d 857, 861 (2002). Further, prior cases have permitted
      testimony that a defendant charged in one case was in
      possession of a gun at another time is permissible as it tends to
      show the identity of the person who used the gun.
      Commonwealth v. Reid, 533 Pa. 508, 512, 626 A.2d 118, 120
      (1993); see also, Commonwealth v. Jones, 457 Pa. 563, 575,
      319 A.2d 142, 149 (1974).

           “While the potential for prejudice, meanwhile, can be great
      when “other crimes” evidence is calculated to inflame the jury’s
      emotions of sympathy or hostility, the potential is mitigated
      where, as here, the focal point of the evidence is the precise


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J-A14024-16


      criminal method used.” Commonwealth v. Weakley, 2009 PA
      Super 74, ¶ 25, 972 A.2d 1182, 1191 (2009)[.]

             Mr. Parker was called to testify as to the fact that he had
      seen [Betts] with the same gun on a prior date in order to help
      prove [Betts’s] identity as the shooter in the later crime. His
      testimony did include a reference to the gun being pointed at
      him which could raise issues of prejudice; however, this Court
      ended his testimony fairly quickly and instructed the jury during
      the closing charge to use his testimony solely for the purpose of
      identification. In our case, the focal point of the evidence was
      merely that [Betts] possessed the gun on a date prior to the
      date of this shooting.

            Further, the prosecution merely questioned Mr. Parker as
      to whether he had seen [Betts] in possession of the handgun
      prior to the date of the shooting.          Mr. Parker replied
      affirmatively. However, on cross-examination, defense counsel
      began to question Mr. Parker regarding his speaking to police
      and giving them a statement. It was at this point that Mr.
      Parker became confused and inadvertently indicated the gun had
      been pointed at him. Based on our limiting instruction and the
      fact that we ended Mr. Parker’s testimony at this point, the
      probative value of identity outweighed any possible prejudicial
      effect of this testimony and the evidence of a prior bad act was
      properly admitted.

Trial Court Opinion, 8/31/2015, at 3-4.

      We agree with the court’s rationale. A review of the record reveals the

following.   On direct examination by the Commonwealth, Parker did not

make a statement that the gun was ever pointed at him.             See N.T.,

10/28/2014-10/29/2014, at 211 (“Q. And did you see that weapon in the

possession of Tasai Betts on May 29th, 2013? A. I did so, sir.”). However,

on cross-examination, the following exchange took place:

      [Defense counsel:] Yes or no: You did speak with police about
      seeing the gun, correct?


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J-A14024-16


       [Parker:] Yes.

                                        …

       [Defense counsel:] Do you remember telling them that you
       believed it was a 9 mm handgun?

       [Parker:] I thought it, yes. With a gun pointed at me, I didn’t
       know what it was. Yes.

       [Defense counsel:] Okay. But --

       [Parker:] I’m sorry.

       [Defense counsel:]     So you saw a close-up of the weapon,
       correct?

       [Defense counsel]: Judge, may we approach?

Id. at 212-214. A sidebar discussion then took place between the parties

and the trial court regarding defense counsel’s request for a mistrial. The

court denied the mistrial, stating:

             I’m not going to allow the circumstances to come in.
       We’re not going to go any further in the testimony. He identified
       the gun. You crossed him and brought out the fact that the gun
       may not be the possible gun.          I believe he’s completely
       traumatized, and we’re going to continue to go forward.

             So the information as to the identification of the gun from
       the robbery in May of 2013 comes in for the limited purpose of
       the identification of the weapon.

Id. at 216-217. Defense counsel then asked for a revised limited instruction

on the issue during closing arguments, which the trial court granted. Id. at

279.    (“You heard testimony from Mr. Parker, who testified earlier this

morning.    His testimony should only be considered by you for the limited




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J-A14024-16


purposes of identification of either Mr. Betts or the firearm. And you’ll use

the same criteria I gave you as to testimony and credibility.”).

       Based on the testimony, we conclude the trial court did not abuse its

discretion in admitting the evidence at issue.            The Commonwealth

introduced the fact that Parker had observed Betts with the gun pursuant to

the identity exception under Rule 404(b) to demonstrate that Betts had been

seen in possession of the gun by another individual on a prior occasion.

Defense counsel, albeit unintentionally, opened the door on the line of

questioning, which led to the introduction of the statement that Betts had

pointed the gun at Parker. There was no further testimony about why the

gun was pointed at Parker.            Lastly, as requested and agreed upon by

defense counsel, the court gave a curative instruction to the jury.9

       Therefore, based on the facts of this case, we find this prior possession

incident was indicative of Betts’s guilt, and the probative value of this prior

bad acts evidence outweighed the risk of unfair prejudice.         See Talbert,

supra. Likewise, “[t]he law presumes juries follow a court’s instructions.”

Commonwealth v. Smith, 131 A.3d 467, 475 (Pa. 2015), cert. denied,

____________________________________________


9
     Although the admission of the evidence at Betts’s second trial is
procedurally similar to what occurred at the first trial, we emphasize the
Commonwealth did not elicit the improper testimony, but rather, it came out
inadvertently on cross-examination. Moreover, we note the introduction of
the evidence was de minimis as Parker testified the gun was pointed at him,
and did not testify that the gun was pointed at his head, as he did in the first
trial. Furthermore, the court gave the instruction to the jury.



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2016 U.S. Lexis 4608 [No. 15-9144] (U.S. Oct. 3, 2016). Accordingly, we

conclude the trial court did not err when it permitted the evidence to be

introduced and denied Betts’s motion for a mistrial.

         In his second claim, Betts argues the trial court abused its discretion

by imposing an aggregate sentence of 21 to 42 years’ incarceration, followed

by 15 years’ probation, because it was clearly unreasonable and manifestly

excessive, as well as inconsistent with the protection of the public, the

gravity of the offenses, and Betts’s rehabilitative needs where the court

imposed consecutive sentences on four counts.          See Betts’s Brief at 49.

Moreover, he states given his “history and background and the mitigating

circumstances of the offense itself, the application of the guidelines would be

clearly unreasonable.”      Id.   Furthermore Betts contends the trial court

discounted certain mitigating factors: (1) he was a juvenile at the time of

the offenses; (2) he had no significant criminal record; (3) he came from a

disadvantageous family background that included physical abuse, and both

of his parents had extensive criminal backgrounds; and (4) he has shown

promise in his pre-sentence incarceration by earning his general education

development (“GED”) degree and did not receive any prison write-ups. Id.

at 52.

         As presented, Betts’s issue challenges the discretionary aspects of his

sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002)

(explaining argument that sentence is manifestly excessive challenges


                                      - 17 -
J-A14024-16


discretionary aspects of sentencing).        The standard of review is well-

established:

           Sentencing is a matter vested in the sound discretion of
     the judge, and will not be disturbed on appeal absent a manifest
     abuse of discretion. An abuse of discretion is not shown merely
     by an error in judgment. Rather, the appellant must establish,
     by reference to the record, that the sentencing court ignored or
     misapplied the law, exercised its judgment for reasons of
     partiality, prejudice, bias or ill will, or arrived at a manifestly
     unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

     “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citations and quotation marks omitted). To reach the merits

of a discretionary issue, this Court must determine:

     (1) whether appellant has filed a timely notice of appeal; (2)
     whether the issue was properly preserved at sentencing or in a
     motion to reconsider and modify sentence; (3) whether
     appellant’s brief has a fatal defect; and (4) whether there is a
     substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).




                                    - 18 -
J-A14024-16


       Here, Betts filed a timely notice of appeal and included the requisite

statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.10 Moreover,

his post-sentence motion was timely filed.11 Therefore, we may proceed to

determine whether Betts has presented a substantial question that the

sentence appealed from is not appropriate under the Sentencing Code.

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

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

       With respect to whether an issue presents a substantial question, we

are guided by the following:

       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis.                See
       Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
       (Pa. Super. 2007). “A substantial question exits only 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. Griffin, 2013 PA Super 70, 65 A.3d 932,
       2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
       quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted).

       As indicated above, Betts claims his sentence is clearly unreasonable,

manifestly excessive, and inconsistent with the Pennsylvania Sentencing

Code, and that the court failed to consider the mitigating evidence he

____________________________________________


10
     See Betts’ Brief at 33-36.
11
     See Betts’ Post-Sentence Motion, 5/21/2015.



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J-A14024-16


presented.   See Betts’s Brief at 49.    We find that such claims do raise a

substantial question. See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.

Super. 2011) (“A claim that a sentence is manifestly excessive such that it

constitutes too severe a punishment raises a substantial question.”);

Commonwealth v. Perry,           883    A.2d    599,   602   (Pa.   Super.   2005)

(concluding appellant raised a substantial question when he jointly claimed

that a sentencing court imposed an excessive sentence and failed to

consider substantial mitigating factors).      Consequently, we will proceed to

the merits of his claims.

      We note that when imposing a sentence, the sentencing court must

consider “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. § 9721(b). Moreover,

      “a court is required to consider the particular circumstances of
      the    offense    and    the   character    of   the   defendant.”
      Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002),
      appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied,
      545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In
      particular, the court should refer to the defendant’s prior criminal
      record, his age, personal characteristics and his potential for
      rehabilitation.” Id. Where the sentencing court had the benefit
      of a presentence investigation report (“PSI”), we can assume the
      sentencing court “was aware of relevant information regarding
      the defendant’s character and weighed those considerations
      along with mitigating statutory factors.” Commonwealth v.
      Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
      Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
      2005) (stating if sentencing court has benefit of PSI, law expects
      court was aware of relevant information regarding defendant’s
      character and weighed those considerations along with any
      mitigating factors).

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J-A14024-16



Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

       “[A]n appellate court may not disturb a sentence that is within the

sentencing guidelines unless it determines that the sentence is ‘clearly

unreasonable.’” Commonwealth v. Bowen, 975 A.2d 1120, 1126 n.5 (Pa.

Super. 2009), quoting 42 Pa.C.S. § 9781(c).

             A sentence may be found unreasonable if it fails to
       properly account for [the] four statutory factors [listed in Section
       978112]. A sentence may also be found unreasonable if the
       “sentence was imposed without express or implicit consideration
       by the sentencing court of the general standards applicable to
       sentencing.”     These general standards mandate that a
       sentencing court impose a sentence “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. §
       9721(b).

Commonwealth v. Sheller, 961 A.2d 187, 191 (Pa. Super. 2008), appeal

denied, 980 A.2d 607 (Pa. 2009).

____________________________________________


12
   In making a reasonableness determination, Section 9781 states a court
should consider the following four factors:

       (1) The nature and circumstances of the offense and the history
       and characteristics of the defendant.

       (2) The opportunity of the sentencing court to observe the
       defendant, including any presentence investigation.

       (3) The findings upon which the sentence was based.

       (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4).



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       Here, with respect to Docket No. 1004-2014, the trial court had the

benefit of a presentence investigation report (“PSI”),13 and therefore, we will

presume     it   was    “aware     of   all    appropriate   sentencing   factors   and

considerations.”       Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (citation omitted).              At the original sentencing hearing on

January 5, 2015, the court heard from the victim, Sergeant Durbin, and the

impact the incident had on him. See N.T., 1/5/2015, at 4-6. Moreover, the

court placed its reasons for the sentence imposed on the record.14 See id.

at 8 (“[B]ased on the testimony as well as the jury’s verdict as well as the

impact on the victim and society as a whole[.]”).

       Subsequently, at the May 14, 2015, sentencing hearing, with regard to

Docket No. 3339-2013, the court heard from one of the officers that

responded to the car chase.             See N.T., 5/14/2015, at 3-4.        The court

indicated it again had the benefit of the PSI and its reasons for the sentence

were based upon “the jury’s decision on the charges that stems from the

incident” as well as the PSI. Id. at 8.15

____________________________________________


13
     See N.T., 1/5/2015, at 2; N.T., 5/14/2015, at 8.
14
     We find the court’s rationale at the original sentencing still stands
because at the May 14, 2015, resentencing hearing, the court only merged
the crimes of attempted criminal homicide and aggravated assault and did
not alter other aspects of the sentence.
15
    We note “[a] sentencing court need not undertake a lengthy discourse for
its reasons for imposing a sentence, ... the record as a whole must reflect
the sentencing court’s consideration of the facts of the crime and character
(Footnote Continued Next Page)


                                          - 22 -
J-A14024-16


      Additionally, we note the trial court had the opportunity to observe

Betts’s behavior at both his two trials and sentencing hearing, and to hear

his allocution at the May 14th sentencing. Betts apologized and took

responsibility for his actions. Id. at 7.

      Lastly, in its June 23, 2015, memorandum disposing of Betts’s post-

sentence motion, the court further explained its reasons for the sentence it

imposed:

            [Betts] contends that his overall sentence is excessive and
      unreasonable and constitutes too severe a punishment in light of
      the gravity of the offense, what is needed to protect the public
      and his rehabilitative needs. [Betts] shot a member of the
      public multiple times causing grievous bodily injury. Several
      nights later, he engaged police officers from multiple districts in
      a high speed chase on a well-travelled highway. He crashed his
      vehicle, with occupants, into a police officer’s vehicle.

                                                 …

             [Betts’s] issue appears to be that the sentence is
      manifestly unreasonable. [Betts] underestimates the gravity of
      his offenses and the danger he poses to the public. Through two
      trials, this court heard evidence of his actions putting others at
      risk. He was found guilty of attempted homicide as well as
      aggravated assault, both of which are extraordinarily violent and
      serious crimes. Beyond that, he put the lives of his friends in
      danger. He put the lives of every other driver on the road in
      danger. Two separate juries found him guilty of a number of
      crimes involving possession of a firearm when he was just 17
      years old. The sentence handed down was in response to the
      gravity of his offenses and in response to the dangers he posed
      to the public at large. Our sentence specifically ordered [Betts]
      to continue his education and receive training that would help
                       _______________________
(Footnote Continued)

of the offender.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.
Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010).



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     him become a productive member of society when he is
     ultimately released. The sentence is proportionate to the crimes
     committed.

Trial Court Opinion, 6/23/2015, at 18-19.

     Based on the above, our review of Betts’s sentence, pursuant to

Section 9781 of the Sentencing Code, leads us to conclude that the court

imposed a reasonable and appropriate sentence.        It is evident from the

court’s on-the-record statements, and in its June 23rd post-sentence

memorandum, that it considered all the requisite factors, including the

nature and circumstances of the offense, the recommended guideline range,

the protection of the public, the gravity of the offense, and Betts’s

rehabilitative needs, when fashioning his sentence.    Moreover, contrary to

Betts’s argument, it is clear from the court’s statement that it did consider

the mitigating circumstances surrounding the incident.       Accordingly, we

conclude the court properly exercised its discretion in sentencing Betts on

both dockets. Therefore, his second issue does not merit relief.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




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