J-S79006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SEAN GORDINE,

                            Appellant                 No. 2219 EDA 2013


         Appeal from the Judgment of Sentence entered June 21, 2013,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-CR-0005860-2007.


BEFORE: ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 17, 2014

        Sean Gordine (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of second-degree murder and related

charges.1 We affirm.

        The trial court summarized the pertinent facts and procedural history

as follows:

              Appellant[, who was fifteen at the time of the incident,]
           and three co-defendants, Eric Gales, Isaiah Ransome and
           Jerry Ransome, were each arrested and charged with
           murder and related offenses in connection with a robbery
           and shooting in the Frankford section of Philadelphia on
           October 3, 2006. During the course of the robbery, the
____________________________________________


1
    18 Pa.C.S.A. § 2502(b).




*Retired Senior Judge assigned to the Superior Court.
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       defendants fired shots at each of the four victims, robbing
       all and killing one.

          The defendants were jointly tried by jury before the
       Honorable Carolyn [Engel] Temin. On June 13, 2008, the
       jury returned a partial verdict finding all four defendants
       not guilty of first degree murder, but deadlocking on the
       remaining charges.

          A second jury trial was set to commence in May of
       2009. Prior to the start of trial, the Commonwealth asked
       Judge Temin to reconsider several evidentiary rulings she
       had made prior to [Appellant’s] first trial. Specifically, the
       Commonwealth sought the introduction of cell phone
       records and writings made by one or more of the
       defendants that had been ruled inadmissible at the
       previous trial. Judge Temin denied the Commonwealth’s
       Motion to Reconsider. The Commonwealth appealed Judge
       Temin’s ruling to the Superior Court, which vacated her
       Order. On March 3, 2011, defense counsel filed a Petition
       for Allowance of Appeal in the Pennsylvania Supreme
       Court.    This Petition was denied on June 2, 2011.
       Appellant’s case was then scheduled for retrial.

          On December 14, 2012, at the conclusion of a second
       jury trial, the jury found [Appellant] guilty of second
       degree murder, three counts of robbery (F-1), three
       counts of aggravated assault (F-1), criminal conspiracy,
       possession of an instrument of crime and violating §§ 6106
       and 6108 of the Uniform Firearms Act.

          [Judge Temin retired prior to sentencing Appellant.
       Appellant’s case was administratively reassigned to the
       Honorable Benjamin Lerner, S.J.] On June 21, 2013, the
       court sentenced [Appellant] to a prison term of thirty-five
       (35) years to life on the second degree murder bill, and
       concurrent prison terms of five (5) to ten (10) years on
       each of the robbery bills and two-and-one-half (2½) to five
       (5) years on the § 6106 bill. The court also imposed a
       sentence of five (5) to ten (10) years imprisonment on
       each aggravated assault bill to be served concurrent to
       each other, but consecutive to the sentence imposed on
       the murder bill. No further penalty was imposed on the
       remaining bills. Appellant’s total aggregate sentence was
       forty (40) years to life.


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              Appellant filed post-sentence motions on July 1, 2013.
           Post sentence motions were denied by the court on July 5,
           2013.

Trial Court Opinion, 6/23/14, at 1-3 (footnotes omitted). This timely appeal

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

1925.

        Appellant raises the following issues:

           1. DID THE TRIAL COURT COMMIT AN ABUSE OF
           DISCRETION WHEN IT OVERRULED A MOTION FOR
           MISTRIAL PROFFERED AFTER DETECTIVE BAMBERSKI
           OPINED THAT HE BELIEVED THAT JERRY RANSOME HAD
           TOLD HIM THE TRUTH?

           2. IS 18 PA.C.S. § 1102.1 UNCONSTITUTIONAL BOTH
           UNDER THE PENNSYLVANIA AND UNITED STATES’
           CONSTITUTIONS BECAUSE IT VIOLATES THE CRUEL AND
           UNUSUAL PUNISHMENT CLAUSES OF THOSE DOCUMENTS?

           3. IS 18 PA.C.S. 1102.1 [] UNCONSTITUTIONAL UNDER
           THE UNITED STATES’ CONSTITUTION BECAUSE IT
           VIOLATES THE EQUAL PROTECTION CLAUSE IN THAT IT
           TREATS JUVENILES CONVICTED OF FIRST OR SECOND
           DEGREE MURDER AFTER ITS PASSAGE DIFFERENTLY THAN
           JUVENILES CONVICTED OF THE IDENTICAL CRIMES PRIOR
           TO ITS PASSAGE?

           4. IS THE SENTENCE IMPOSED ON APPELLANT UNDER 18
           PA.C.S. 1102.1 UNCONSTITUTIONAL UNDER THE UNITED
           STATES’ AND PENNSYLVANIA CONSTITUTIONS BECAUSE
           IT VIOLATES THEIR RESPECTIVE EX POST FACTO
           CLAUSES?

           5. DID THE SENTENCING COURT COMMIT AN ABUSE OF
           DISCRETION BY IMPOSING A SENTENCE THAT WAS FAR
           GREATER THAN NECESSARY TO REHABILITATE APPELLANT
           AND WHICH FAILED TO ADEQUATELY CONSIDER THAT
           APPELLANT WAS A JUVENILE WHEN THE CRIME HEREIN
           WAS COMMITTED AS WELL AS THE FACTORS SET FORTH
           IN [Miller v. Alabama, 132 S.Ct. 2455 (2012)] AND THE
           SENTENCING CODE?

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Appellant’s Brief at 3.

      In his first issue, Appellant asserts that the trial court erred in denying

his motion for mistrial.    We recently reiterated the applicable standard of

review as follows:

            It is well-settled that the review of a trial court’s denial
         of a motion for mistrial is limited to determining whether
         the trial court abused its discretion. An abuse of discretion
         is not merely an error of judgment, but if in reaching a
         conclusion the law is overridden or misapplied, or the
         judgment exercised is manifestly unreasonable, or the
         result of partiality, prejudice bias or ill-will . . . discretion is
         abused. A trial court may grant a mistrial only where the
         incident upon which the motion is based is of such a
         nature that its unavoidable effect is to deprive the
         defendant of a fair trial by preventing the jury from
         weighing and rendering a true verdict. A mistrial is not
         necessary where cautionary instructions are adequate to
         overcome prejudice.

Commonwealth v. Brooker, 2014 PA Super 209, *10-11, ___ A.3d. ___

(Pa. Super. 2014) (citation omitted).

      The following exchange at trial, between the Commonwealth and a

police detective who took a statement from one of Appellant’s co-

defendants, provides the basis for Appellant’s claim:

         Q. Detective Bamberski, I notice that you documented in
         here if [Jerry Ransome] was given a soda and the
         opportunity to use a bathroom. Why did you do that?

         A. Just, basically, to show that there was no coercion on
         anybody’s part. I mean, it’s - - you know, there are times
         when allegations are made and things of that nature in
         regards to what goes on in the Homicide Division. And in
         this case he was very forthcoming. He indicated that he
         wanted to talk and in my opinion was very truthful about
         the fact - -

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            [JERRY RANSOME’S COUNSEL]: Objection.

N.T., 12/12/12, at 33.

      The trial court responded:

                  THE COURT: The objection is sustained. The
         jury will totally disregard that last statement by the
         detective. What is true and what is not true is up to you to
         decide and nobody else’s opinion, including mine, is
         relevant on that issue.

                  So you are to totally wipe from your mind what
         the detective said. You are not to consider it in any way,
         shape or form.         Truthfulness and accuracy of any
         testimony, including the statements that are being read to
         you so far are totally up to you to determine.

Id. at 33-34.

      We initially note that the record supports the Commonwealth’s

contention that Appellant’s claim is waived because he failed to make a

timely motion for mistrial. See Pa.R.A.P. 605(b) (explaining that, in order to

be timely, a motion for mistrial “shall be made when the [allegedly

prejudicial] event is disclosed”).        Here, Appellant did not join in Jerry

Ransome’s   request      for   a   mistrial   until   the   conclusion   of   Detective

Bamberski’s testimony. See N.T., 12/12/12, at 74. Case law has held that

such a delay renders a motion for mistrial untimely.                      See, e.g.,

Commonwealth v. Boring, 684 A.2d 561, 568 (Pa. Super. 1996)

(explaining that a motion for mistrial was untimely when it was made a

considerable length of time after the prejudicial reference was made, and

after the Commonwealth had concluded direct examination of its witness).



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         Even if not waived, the trial court found Appellant’s claim to be

meritless and belied by the record. According to the trial court:

              At trial, Detective Bamberski testified about the facts
           and circumstances surrounding Jerry Ransome’s decision
           to give a detailed statement to police following his arrest.
           Detective Bamberski stated that he gave Jerry Ransome a
           soda and allowed him to use the rest room during the
           course of his interview. This testimony was elicited to
           demonstrate that Ransome was not coerced into giving his
           statement.     Detective Bamberski further testified that
           Ransome was “very forthcoming” and in his opinion “very
           truthful.”    At that point, Jerry Ransome’s attorney
           objected. He did not request a mistrial, as [Appellant]
           claims herein. The court sustained counsel’s objection and
           immediately gave a curative instruction. The court told
           the jury it was to disregard Detective Bamberski’s
           statement, and that it was up to the jury to determine the
           truthfulness and accuracy of any statement, including
           statements being read into evidence.

              The trial court did not abuse its discretion in failing to
           order a mistrial sua sponte. The testimony in issue was
           related only to Jerry Ransome’s statement. It was not
           entered into evidence against [Appellant]. Moreover, the
           court gave an immediate instruction to the jury that it
           should not consider Detective Bamberski’s opinion.
           Appellant was in no way prejudiced by the court’s ruling.

Trial Court Opinion, 6/23/14, at 12.

         Our review of the record supports the trial court’s conclusions.   The

trial court’s immediate curative instruction remedied any prejudice caused

by detective’s unsolicited opinion. Brooker, supra. Appellant’s first issue

fails.

         Appellant next claims that the recently enacted juvenile sentencing

provision found at 18 Pa.C.S.A. section 1102.1 is unconstitutional because it


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“violates the United States and Pennsylvania constitutions’ prohibition

against cruel punishment found in the Eighth Amendment and Article 1,

section 13, respectively, because it requires the imposition of a mandatory

minimum sentence of thirty years’ incarceration      upon defendants fifteen

years or older convicted of second-degree murder, a sentence that is the

equivalent of a life sentence, without consideration of the factors set forth”

in Miller, supra. Appellant’s Brief at 26.

      This Court has recently rejected a similar claim under the federal

constitution made by a juvenile who was sentenced following the passage of

Section 1102.   See Brooker, supra; Commonwealth v. Lawrence, 99

A.3d 116 (Pa. Super. 2014). As we are bound by these decisions, we need

not discuss Appellant’s claims further.

      Moreover, as to Appellant’s claim under the Pennsylvania constitution,

we agree with the Commonwealth that Appellant has waived his challenge

because his brief is devoid of the requisite independent constitutional

analysis. See generally, Commonwealth v. Edmunds, 586 A.2d 887 (Pa.

1991). Rather, Appellant concedes that the protection provided under both

constitutions is co-extensive, and that Pennsylvania courts have repeatedly

held that “the Pennsylvania Constitution affords no broader protection

against excessive sentences than that provided by the Eighth Amendment to

the United States Constitution.”   Appellant’s Brief at 26 n.7.   Accordingly,

our decisions in both Brooker and Lawrence amply demonstrate why




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Appellant’s   constitutional   challenge      is   equally   meritless   under   the

Pennsylvania Constitution.

       In his next two issues, Appellant asserts that Section 1102.1 is

unconstitutional because it violates both the equal protection clause of the

United States Constitution, as well as the prohibition against ex post facto

laws contained in both the federal and state constitutions.                Although

Appellant did not raise these claims in his post-sentence motions, he asserts

that they implicate the legality of his sentence and cannot be waived. See

Appellant’s Brief at 36-37.    Addressing this same factual circumstance in

Lawrence, supra, this Court thoroughly reviewed the distinction “between

legal sentencing questions and an illegal sentence” claim.          Lawrence, 99

A.3d at **13. We then concluded:

             Because Appellant’s Equal Protection and Ex Post Facto
         Clause    arguments     directly  seek    protection  from
         legislatures, not judges, we hold that these arguments fall
         into the category of a sentencing issue that presents a
         legal question rather than a claim that the sentence is
         illegal.

                                     ***

            As a result, we conclude that the trial court was correct
         that Appellant waived his arguments under the Equal
         Protection and Ex Post Facto Clauses by not raising them
         in his post-sentence motion below.

Id. at **17-18 (citation omitted).

       Here, given our holding in Lawrence, we agree with the trial court

that   Appellant   has   waived   his    remaining      constitutional   challenges.



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Moreover, we note that in Brooker, supra, this Court addressed and

rejected a claim that Section 1102 violated the ex post facto clauses of both

the federal and state consitutions.   See Brooker, 2014 PA Super 209, at

**30-40.

      In his final issue, Appellant challenges the discretionary aspects of his

sentence. As this Court has summarized:

        Appellant challenges the discretionary aspects of sentencing
        for which there is no automatic right to appeal. This appeal
        is, therefore, more appropriately considered a petition for
        allowance of appeal. Two requirements must be met before
        a challenge to the judgment of sentence will be heard on
        the merits. First, the appellant must set forth in his [or her]
        brief a concise statement of matters relied upon for
        allowance of appeal with respect to the discretionary
        aspects of his [or her] sentence.         Pa.R.A.P. 2119(f).
        Second, he or she must show that there is a substantial
        question that the sentence imposed is not appropriate under
        the Sentencing Code. 42 Pa.C.S.A. § 9781(b)[.]

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

Commonwealth v. Marts, 889 A.2d 608, 611-12 (Pa. Super. 2005)

(footnote and citations omitted).

      In his 2119(f) statement, Appellant asserts:

            [T]he sentencing court failed to consider [the Miller]
         factors, and thus further review should be granted.

            In the light most favorable to the Commonwealth, the
         evidence shows that [Appellant] was a minor participant in

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        the crime and that he was one of the youngest of the four
        persons who committed the crime. Moreover, given his
        age and involvement, it is respectively submit[ted] that a
        sentence of forty years to life was unreasonably harsh and
        requires further review.

Appellant’s Brief at 53. We conclude that Appellant’s sentencing claim has

raised a substantial question.   See Commonwealth v. Seagraves, 2014

PA Super 252, *7, ___ A.3d ___ (Pa. Super. 2014) (citing Commonwealth

v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (concluding that defendant’s

discretionary sentencing claim raised after he was resentenced in light of

Miller raised a substantial question; “prior decisions from this Court

involving whether a substantial question has been raised by claims that the

sentencing court ‘failed to consider’ or ‘failed to adequately consider’

sentencing factors “has been less than a model of clarity and consistency”).

Thus, we reach the merits of Appellant’s claim.

     Our standard of review is well settled:

        In reviewing a challenge to the discretionary aspects of
        sentencing, we evaluate the court’s decision under an
        abuse of discretion standard. When, as here, the trial
        court has the benefit of a presentence report, we presume
        that the court was aware of relevant information regarding
        the    defendant’s    character    and    weighed    those
        considerations along with any mitigating factors.

Seagraves, at *8 (citations omitted).

     As noted by the trial court, “[t]he transcript from [Appellant’s]

sentencing hearing on June 23, 2013 is not available.   On June 20, 2014,

this court held a hearing for purposes of re-creating the record [] from



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[Appellant’s] sentencing proceedings and directed counsel to submit a

Statement [in lieu of transcript] pursuant to Pa.R.A.P. 1923 and 1924 for

this court’s approval.” Trial Court Opinion, 6/23/14, at 2 n.4.

      After receiving the statements, the trial court provided the following

explanation for its sentencing choice in its Pa.R.A.P. 1925(a) opinion:

          In fashioning its sentence, the court considered
          [Appellant’s] pre-sentence investigation, the facts and
          circumstances of [Appellant’s] crimes, all of the testimony,
          evidence and arguments presented at [Appellant’s] trial
          and sentencing hearing. The court also considered each of
          the factors listed above and the age-related factors
          espoused in Miller. Appellant’s sentence was completely
          appropriate, and this court did not abuse its discretion
          when it imposed sentence.

Trial Court Opinion, 6/23/14, at 9-10.

      Within his brief, Appellant provides no basis upon which we may

conclude that the sentencing court abused its discretion.          Because the

sentencing court possessed a presentence report, we assume the court “was

aware of relevant information regarding the defendant’s character and

weighed    those   considerations   along     with   any   mitigating    factors.”

Seagraves, supra.        Of necessity, some of the information regarding

Appellant disclosed in the presentence report would involve the factors

discussed in Miller.

      Moreover, the only statement made by Appellant in his Pa.R.A.P. 1923

statement was that the defense argued Appellant “was a follower, not a

leader, and is amenable to rehabilitation.” Rule 1923 Statement, 6/30/14,


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at 1.    We note, however, statements made by the Commonwealth in its

detailed sentencing memorandum, submitted prior to Appellant’s sentencing

hearing.     See Sentencing Memorandum, 5/16/13.         This memorandum

demonstrates that, despite his youth, Appellant had multiple contacts with

the juvenile justice system and, in fact, was on probation at the time of the

victim’s murder.

        Finally, because a thirty year sentence for Appellant’s second-degree

murder was mandatory, the only real discretion exercised by the sentencing

court was in its sentencing of Appellant to an additional five years for the

murder conviction, and its decision to run one of Appellant’s remaining

sentences consecutive to the sentence for the murder conviction.       Given

Appellant’s multiple convictions and multiple victims, Appellant’s sentencing

claim fails. See generally, Dodge, supra.

        In sum, because his claims on appeal are either waived or without

merit, we affirm Appellant’s judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014




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