J-S31011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RYAN ROBERT JOHNSON,

                            Appellant                No. 1127 MDA 2015


              Appeal from the Judgment of Sentence May 4, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002278-2014


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 19, 2016

       Appellant, Ryan Robert Johnson, appeals from the May 4, 2015

judgment of sentence entered following his conviction by a jury of delivery of

a controlled substance, possession of drug paraphernalia, false identification

to law enforcement, and criminal use of a communication facility. Following

our careful review, we affirm.

       The trial court summarized the facts of the crimes as follows:

       Sergeant Kyle Gautsch, Detective Nicholas Licata, Sean Hamor
       of Adult Probation, and Detective Donald Heffner all testified on
       behalf of the Commonwealth. On April 3, 2014, the day in
       question, Sergeant Gautsch was assisting Detective Heffner with
       a drug transaction in the area of Green and Boas Streets in
       Harrisburg.     After meeting with Detective Heffner and a
       confidential informant (CI), Sergeant Gautsch drove the CI to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Green Street, north of Boas Street; the CI was searched prior to
     entering the sergeant’s vehicle. Sergeant Gautsch testified that
     once it was determined that everyone was set in place, the CI
     exited his vehicle and walked to the corner of Green and Boas
     Streets. At that point, Sergeant Gautsch observed [Appellant]
     meet with the CI. He observed the two interacting, then lost
     sight of them as they walked down Boas Street. Sergeant
     Gautsch identified [Appellant] as Ryan Johnson.

           Detective Licata was also assisting Detective Heffner with
     surveillance of the drug buy on the day in question. Detective
     Licata parked his undercover vehicle in the 200 block of Boas
     Street, and he observed [Appellant] and the CI make a “hand–
     to-hand exchange.” He also observed Detective Heffner arrest
     [Appellant].

           Sean Hamor of the Dauphin County Adult Probation,
     assigned to the Street Crimes Unit, was in Detective Heffner’s
     patrol car on the day of the drug transaction at issue. Agent
     Hamor testified that his role in the Street Crimes Unit includes
     supervising the offenders on his caseload, and responding to
     police calls, during which he is partnered with a police officer.
     Agent Hamor stated that he and Detective Heffner were
     conducting surveillance on Boas Street, close to Green Street,
     prior to the drug exchange taking place. After the exchange[]
     took place between [Appellant] and the CI, Agent Hamor exited
     the vehicle and ran down Green Street to get a view of
     [Appellant]. When he came into view, Agent Hamor ordered
     [Appellant] to stop. [Appellant] took a few steps as if he were
     going to run, so Agent Hamor pulled out a weapon and ordered
     him to the ground. As he told [Appellant] to stop, Agent Hamor
     observed the cash that [Appellant] was holding drop to the
     ground. Agent Hamor also retrieved [Appellant’s] cell phone
     after he was apprehended.

           Detective Heffner, the detective in charge of the drug
     investigation in question, testified that the operation was a “buy-
     bust” of an individual known as “Ryan a/k/a Kansas” and that
     the plan was for the CI to purchase Klonopin, or clonazepam,
     which is a Schedule IV drug. The CI was to buy them for $3.00
     per pill, for $90.00. Detective Heffner observed the CI call
     [Appellant] on his cell phone. After the call, Detective Heffner
     searched the CI for drugs, drug paraphernalia, money, and
     weapons to ensure that the informant did not have any of these

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      items on his/her person at the time of the drug transaction.
      Detective Heffner also photographed $120 in U.S. currency and
      gave it to the CI. He explained that the money is photographed
      to determine whether the target, after an arrest, would have any
      of the photographed currency on his person. Detective Heffner
      testified that on the day in question, he had surveillance units on
      different streets of an intersection—a marked unit was parked at
      Third and Boas Streets, Detective Licata was positioned on the
      200 block of Boas Street, and the CI was let out on the 1100
      block of Green Street.

             At approximately 3:50 p.m. on April 3, 2013, Detective
      Heffner observed the CI get out of Sergeant Gautsch’s vehicle
      and walk toward Boas Street. He then saw the CI meet up with
      [Appellant], who he identified in court.        Detective Heffner
      testified that after Detective Licata gave a takedown signal, the
      CI left [Appellant], and Detective Heffner drove around the
      corner.     By the time Detective Heffner caught up with
      [Appellant], he was being taken into custody by Agent Hamor.

             Detective Heffner recovered the money that was left
      behind which was $100, along with the cell phone.             The
      photographs taken of the U.S. currency revealed that the serial
      numbers on the abandoned bills matched up with the serial
      numbers of five of the bills given to the CI. When Detective
      Heffner picked up the cell phone that was left behind, he dialed
      the number that the CI used to call [Appellant]; the detective did
      this from his own cell phone. When the call went through, the
      recovered cell phone started to ring and displayed Detective
      Heffner’s phone number on it.        Additionally, a subsequent
      investigation into the subscriber information from Verizon
      confirmed that the phone was subscribed to [Appellant]. The
      pills that were turned over to police were turned over to the
      Pennsylvania State Lab and it was confirmed that they were
      clonazepam pills.

Trial Court Opinion, 9/4/15, at 1–4 (internal citations omitted).

      Following a jury trial on March 3–4, 2015, Appellant was convicted as

described above.   The court sentenced Appellant to an aggregate term of

imprisonment of fifteen to sixty months on May 4, 2015.         Appellant filed


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timely post-sentence motions on May 14, 2015, which the trial court denied

on June 3, 2015. Appellant filed a timely notice of appeal on June 30, 2015.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following two, reordered issues on appeal:

       I.     Whether the trial court erred in denying Appellant’s post-
              sentence motion where the verdict was against the weight
              of the evidence so as to shock one’s sense of justice where
              the Commonwealth failed to reveal the identity of its
              confidential informant?

      II.     Whether the trial court abused its discretion in sentencing
              Appellant to an aggregate sentence of fifteen (15) months
              to sixty (60) months of incarceration where the sentence is
              excessive and unreasonable in light of Appellant’s
              rehabilitative needs, the gravity of the offense, and what is
              necessary to protect the public?

Appellant’s Brief at 7 (underline omitted).

      While Appellant asserted a weight-of-the-evidence claim in his post-

sentence motions, he did not base it upon the Commonwealth’s failure to

reveal the identity of the CI. Rather, he asserted that his convictions were

against the weight of the evidence where he “was not shown to have

engaged in behavior which constituted the offenses of which he was

convicted.”     Post-Sentence Motions, Motion for New Trial or Arrest of

Judgment, 5/14/15, at unnumbered 2. In addition, Appellant did not raise

any issue relating to the identity of the confidential informant in his concise

statement of errors filed pursuant to Pa.R.A.P. 1925. Appellant’s attempt to

raise this issue for the first time on appeal results in waiver, as Appellant has

not preserved the issue for our review.       Commonwealth v. Oliver, 128

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A.3d 1275, 1284 (Pa. Super. 2015) (issues not raised in the lower court are

waived and cannot be raised for the first time on appeal) (citing Pa.R.A.P.

302(a)); Pa.R.A.P.1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”).

      Appellant’s second issue is a challenge to the discretionary aspects of

his sentence. It is well settled that a challenge to the discretionary aspects

of a sentence is a petition for permission to appeal, as the right to pursue

such a claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597,

599 (Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke

this Court’s jurisdiction when challenging the discretionary aspects of a

sentence,” by (1) preserving the issue in the court below, (2) filing a timely

notice of appeal, (3) including a Rule 2119(f) statement, and (4) raising a

substantial question for our review. Commonwealth v. Tejada, 107 A.3d

788, 797 (Pa. Super. 2015) (citation omitted); Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013).

      Appellant has met the first three parts of the four-prong test:

Appellant filed a timely appeal; Appellant preserved the issue in a post-

sentence motion; and Appellant included a statement pursuant to Pa.R.A.P.

2119(f) in his brief.   Thus, we assess whether Appellant has raised a

substantial question with respect to the issues he presents.




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      A determination as to whether a substantial question exists is made on

a case-by-case basis.    Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).     “A substantial question exists 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. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015), appeal denied, 126 A.3d 1282 (Pa. 2015). Here, we conclude that

Appellant’s challenge to the imposition of his sentence as unduly excessive,

together with his claim that the trial court failed to consider his rehabilitative

needs, presents a substantial question. Commonwealth v. Johnson, 125

A.3d 822 (Pa. Super. 2015) (excessive sentence claim, in conjunction with

assertion that court failed to consider mitigating factors, raises a substantial

question). Thus, we grant Appellant’s petition for allowance of appeal and

address the merits of his claim. Caldwell, 117 A.3d at 770.

      Appellant    maintains    that   his   sentence    was    “excessive    and

unreasonable in light of Appellant’s rehabilitative needs, the gravity of the

offense as it relates to the impact on the life of the victim and on the

community, and the protection of the public.”       Appellant’s Brief at 14–15.

He maintains that he should have received only “a non-confinement

sentence.” Id. at 15. Appellant asserts that the trial court disregarded the

fact that “Appellant has his high school diploma and graduated from


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technical school, where he learned various job skills” that he now cannot

utilize because he is incarcerated. Id.

      In assessing the merits of a challenge to the discretionary aspects of a

sentence, we apply the following standard:

      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. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Johnson, 125 A.3d at 826 (citing Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa. Super. 2013)); see also Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007) (citation omitted) (“An abuse of discretion may not be

found merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality,

prejudice bias or ill-will, or such a lack of support as to be clearly

erroneous.”).

      In rejecting Appellant’s claim, the trial court noted that its imposition

of this standard-range sentence included careful consideration of the

presentence report. Trial Court Opinion, 9/4/15, at 6. When a presentence

investigation report exists, this Court presumes that the trial court “was

aware of relevant information regarding [the appellant’s] character and

weighed those considerations along with the mitigating statutory factors.”




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Commonwealth v. Fullin, 892 A.2d 843, 849–850 (Pa. Super. 2006)

(citation omitted). As our Supreme Court explained:

      A pre-sentence report constitutes the record and speaks for
      itself. In order to dispel any lingering doubt as to our intention
      of 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. Devers, 546 A.2d 12, 18 (Pa. 1988). “The 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. Ventura, 975 A.2d 1128, 1135 (Pa. Super.

2009) (citation omitted).

      In addition, at sentencing, defense counsel asserted Appellant’s receipt

of a high school diploma and technical job skills for the trial court’s

consideration.   N.T., 5/4/15, at 3.      The trial court additionally reviewed

Appellant’s considerable criminal history, which included a forty-four-month

sentence in Kansas for his conviction of robbery, and delivery of a controlled

substance in Pennsylvania.




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      Further, Appellant exercised his right to allocution. N.T., 5/4/15, at 4–

5; Pa.R.Crim.P. 704 (C)(1) (trial court shall afford the appellant the

opportunity to make a statement in his behalf at the time of sentencing).

The trial court reviewed the presentence investigation report, had the

opportunity to evaluate the remorse expressed by Appellant along with his

expressed desire “to make better choices in the future,” and it articulated its

reasons for the sentence imposed. N.T., 5/4/15, at 5. Appellant’s claim that

the trial court failed to consider mitigating factors is without merit; we will

not re-weigh those factors and impose our judgment in the place of the

sentencing court.     Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.

Super. 2009).     For all of these reasons, we conclude that Appellant is not

entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




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