J-S36025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MONROE WEEKLEY, III

                            Appellant                No. 1732 WDA 2014


          Appeal from the Judgment of Sentence September 19, 2014
               in the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0002162-2011


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                             FILED JULY 10, 2015

        Appellant Monroe Weekley, III, appeals from the judgment of sentence

entered in the Beaver County Court of Common Pleas following his jury trial

conviction for third degree murder,1 receiving stolen property,2 and firearms

not to be carried without a license.3 We affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2501(a).
2
    18 Pa.C.S. § 3925(a).
3
    18 Pa.C.S. § 6106(a).
J-S36025-15



       In its Pa.R.A.P. 1925(a) opinion, the trial court fully and correctly sets

forth the relevant facts and procedural history of this case.      See 1925(a)

Opinion, pp. 1-12.4 Therefore, we have no reason to restate them.

       Appellant raises the following issues for our review:

       I. The [t]rial [c]ourt erred in determining that the evidence was
       sufficient to support a conviction for [r]eceiving [s]tolen
       [p]roperty, where the Commonwealth failed to offer any
       evidence that [Appellant] knew the firearm was stolen.

       II.    The [t]rial [c]ourt abused its discretion in imposing
       consecutive sentences, using an incorrect offense gravity score
       of 9 (loaded weapon) rather than 7, which resulted in an unduly
       harsh sentence, without considering [Appellant’s] specific
       circumstances and rehabilitative needs when compared to the
       need to protect the public.

Appellant’s Brief, p. 6.

       When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

       The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
____________________________________________


4
  The introductory paragraph of the trial court’s 1925(a) opinion incorrectly
indicates that the instant matter is an appeal of the disposition of Appellant’s
PCRA petition. See 1925(a) Opinion, p. 1. In actuality, the instant appeal is
of Appellant’s judgment of sentence following the trial court’s grant of
Appellant’s PCRA petition requesting reinstatement of his direct appeal rights
nunc pro tunc after this Court dismissed his first appeal because Appellant’s
direct appeal counsel failed to file a brief.       See Commonwealth v.
Weekley, 424 WDA 2013, Order filed January 22, 2014. The body of the
trial court’s 1925(a) opinion correctly states the procedural posture of the
matter (see 1925(a) Opinion, pp. 10-12) and the trial court’s misstatement
has no bearing on its thorough analysis of the issues raised.



                                           -2-
J-S36025-15


     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying [the above] test,
     we may not weigh the evidence and substitute our judgment for
     the fact-finder.     In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.           Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [trier] of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced, is free to believe all, part
     or none of the evidence.

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

     Regarding Appellant’s discretionary aspects of sentencing claim, we

observe:

     [T]he proper standard of review when considering whether to
     affirm the sentencing court’s determination is an abuse of
     discretion. . . . [A]n abuse of discretion is more than a mere
     error of judgment; thus, a sentencing court will not have abused
     its discretion unless the record discloses that the judgment
     exercised was manifestly unreasonable, or the result of
     partiality, prejudice, bias or ill-will. In more expansive terms,
     our Court recently offered: 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 lack of support so as to be clearly erroneous.

     The rationale behind such broad discretion and the
     concomitantly deferential standard of appellate review is that the
     sentencing court is in the best position to determine the proper
     penalty for a particular offense based upon an evaluation of the
     individual circumstances before it.




                                    -3-
J-S36025-15



Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super.2010)

(internal citations omitted).

      Further, we note that “[c]hallenges to the discretionary aspects of

sentencing     do    not   entitle   a   petitioner   to   review   as   of   right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).                    Before

this Court can address such a discretionary challenge, an appellant must

comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (1) whether appellant has filed a timely notice of
      appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
      properly preserved at sentencing or in a motion to reconsider
      and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
      appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
      whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code.

Id. at 1064.

      “A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms   which       underlie   the   sentencing   process.”   Commonwealth        v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.” Id. at 10.

      Here, Appellant filed a timely notice of appeal, and preserved his

issues in a post-sentence motion.          Further, Appellant’s brief includes a


                                         -4-
J-S36025-15



concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).   See Appellant’s Brief, p. 10.      A court’s

exercise of discretion in imposing a sentence concurrently or consecutively

does not ordinarily raise a substantial question.       Commonwealth v.

Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010), appeal denied, 14 A.3d

825 (Pa.2011). Rather, the imposition of consecutive rather than concurrent

sentences will present a substantial question in only “the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.”

Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super.2012), appeal

denied, 75 A.3d 1281 (Pa.2013). This Court has stated that

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

Commonwealth      v.   Dodge,    77    A.3d   1263,   1270   (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(emphasis in original). However, an allegation that a trial court employed

an improper calculation of an Offense Gravity Score raises a substantial

question for appellate review. See, e.g., Commonwealth v. Archer, 722

A.2d 203, 210-211 (Pa.Super.1998) (claim that sentencing court used

incorrect Offense Gravity Score raises a substantial question regarding



                                      -5-
J-S36025-15



discretionary aspect); see also Commonwealth v. Jackson, 585 A.2d

533, 534 (Pa.Super.1991) (“Where [an] appellant avers that the sentencing

court failed to properly apply the sentencing guidelines a substantial

question as to the appropriateness of the sentence has been raised.”).

Therefore, Appellant has raised a substantial question for our review, and we

can properly address Appellant’s discretionary aspects of sentencing on

appeal.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Kim Tesla,

we conclude Appellant’s issues merit no relief.      The trial court opinion

comprehensively    discusses   and   properly   disposes   of   the   questions

presented. See Trial Court Opinion, dated November 20, 2014, pp. 12-21

(finding: (1) evidence that Appellant was in possession of firearm within

three months of its theft and sold firearm after murder, without proof of

ownership and with the help of a known illegal firearms dealer, was sufficient

to support conviction for receiving stolen property; (2) court properly

sentenced Appellant after considering 42 Pa.C.S. § 9721(b) sentencing

factors, Appellant’s pre-sentence report, sentencing guidelines, Appellant’s

prior record, evidence presented at sentencing, Appellant’s allocution, and

Appellant’s rehabilitative needs; and (3) court properly employed offense




                                     -6-
J-S36025-15



gravity score of 95 because jury could infer that firearm Appellant used to

shoot victim was loaded while in Appellant’s possession).    Accordingly, we

affirm on the basis of the trial court’s opinion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




____________________________________________


5
  In sentencing Appellant on the firearms not to be carried without a license
conviction, the trial court would have properly used an offense gravity score
of 9 if the weapon were loaded, whereas an offense gravity score of 7 would
have been appropriate were the weapon unloaded.



                                           -7-
                                                                                        Circulated 06/30/2015 03:25 PM


                         1:",I THE COL"RT OF COMMON PLEAS OF BEAVER COL'"KTY
                                              PE~".\:S YLVA NlA
                                           CRJ\ifIJ\AL DlVJSION - LAW
    )
         COMYIOI\\VEAL TH OF PE:t\~SYL VAN IA,

                 vs.
                                                                                           J'\o. 2162 of 20l l
         MONROE WEEKLEY.            ur,

                        Defendant

         Tesla, J,                                                                   November    90 . 2014
                                           Rt;LE 1925(a). OPINION
                 Before this Court for disposition is the petition for post-conviction collateral relief under

         the Post C onviction Relief Act ( hereinafter. ··PCR.A .. l filed on behalf of Defendant Monroe

         Weekly. Ill. This is the second time this matter has been appealed, and this the second 1925(a)

        Opinion issued by this Court. For the reasons staled below, Defendant's Petition is denied.

)                                    FACTS AND PROCEDliRAL HISTORY

                A. Facts and Investigation

                This matter arises out of the death of Rashawn T. Cameron. At approximately 11 :35 a.m,

        on Sunday, '.!\o·vember 21, 2010. the Beaver County 911 Emergency Control Center received a

        telephone call from an unidentified female located at the residence of Willie Martin at 308

        Cooper Street. Aliquippa, Pennsylvania.      The female reported that, inside the residence. an

        unknown male was lying on the living room couch unresponsive and bleeding from the face, As

        a result of the caller· s in formation, the Emergency Control Center dispatched Aliquippa Police to

        the reported address. L pon arrival at the residence at approximately l l :40 a.m .. the responding

        officers observed a black male identified as Rashawn T. Cameron (hereinafter, "Cameron") lying

        in a pool of blood. His waist was positioned at the edge of a scat cushion with his feet resting on




                                                    APP.B
                                                                                    Circulated 06/30/2015 03:25 PM

      the floor. A preliminary examination of Cameron's body by the responding officers and Deputy

')    Coroner Wayne Tatalovich revealed that Cameron sustained a gunshot wound to the back of his

      head behind his left ear with a large exit wound on his forehead above the right      t!}'~-   He was

      pronounced dead at the scene. During the search of the crime scene, law enforcement located

      fragments of a lead projectile. After performing an autopsy. Dr. James Smith determined that

      Cameron died as a result of the gunshot wound and that Cameron was the victim of a homicide.

              On February 10. 10 IL Assistant Chief County Detective Andrew Gall and County

      Detective Robert Heberle interviewed Bradley J. Karas (hereinafter. "Karas") in connection with

      their investigation of this matter. Karas told the officers that, during the morning of November

     21. 2010. he was sleeping at the residence of James C. Stewart II] (hereinafter ... Stewart": at 181

     Baker Street. Aliquippa. Pennsylvania,      According to Karas. Defendant arrived at Stewart's

     residence between 6:30 a.m. and 7:30 a.m, wearing dark jeans. black boots. a black hoodie, and

     carrying a black book bag. Karas stated that. after seeing Defendant. he fell asleep again and

     awoke at·   approximately   10:30 a.m,   Shortly thereafter, Karas walked into the kitchen and

     observed Defendant and Stewart talking, Karas slated that he also observed Defendant remove

     what appeared to be a .44 caliber Smith and Wesson revolver handgun from his black book bag.

     Defendant {hen asked Karas to lake the handgun downstairs to clean it and warned that the

     handgun should not be touched until after it was deaned. Karas stated that, after he complied

     with Defendants request. Defendant and Stewart left Stewart's residence and attempted           to   sell

     the handgun to James E. Connor HI (hereinafter ... Connor .. ).

            Karas toJd Detectives Gall and Heberle that. upon returning lo Stewart's residence.

     Defendant described the murder of Cameron. Defendant told Karas that he and an unidentified

     black male purchased a S50.00 piece of crack cocaine from an unidentified individual at a crack
                                                                                     Circulated 06/30/2015 03:25 PM

         house on Plan 11 in Aliquippa, Defendant, the unidentified black male. and someone Defendant

         referred to as the "Vic" went outside or the crack house for about a minute and then the "Vic ..
    )
         and Defendant went back inside the crack house. Defendant stated that. when the "Vic" sat on

         the couch and bent over to retrieve something from under the coffee table, Defendant shot the

         "Vic .. in the head. Defendant stated that he attempted to rob the "Vic" but found nothing in his

         pockets. Defendant then walked to Valley Terrace, left his clothes near a dumpster. and

         proceeded to Stewart's residence.

                After he related these events.      Defendant   remained at Stewart' s residence umll

         approximately 4:00 p.m .• when an unidentified white female driving a white Chevrolet Cavalier

        picked Defendant up and drove him from the residence. Kara'> told the detectives that, as

         Defendant left. he was carrying the same black book bag that had previously held the revolver.

                Also on February l 0. .2011. Detective Heberle and Sergeant Steve Roberts of the

        Aliquippa Police Department reported to Connor's residence at 171 Baker Street Aliquippa.
    )
        Pennsylvania to question Connor and to attempt to retrieve the .44 caliber revolver that Stewart

        allegedly .sold to Connor on behalf of Defendant. Connor admitted that he purchased a .44

        Maznum
          ~    Ruger
                 ~   Redhawk revolver (hereinafter, "Redhawk revolver") from Stewart. and. based

        on information provided by Connor, the investigators        were able to recover the Redhawk

        revolver, Through an inquiry conducted at the Beaver County Emergency Control Center, law

        enforcement officials discovered the identity of the owner of the Redhawk revolver and that it

        was reported missing by the owner in May of 2010.

               On February l 1. 2011. Connor reported to the police station and provided a statement

        regarding how he acquired the Redhawk revolver. Connor indica« . --d that. at some point towards

        the end of November 10 l 0. Stewart came to his residence and sold him the Redhawk revolver


)
                                                                                   Circulated 06/30/2015 03:25 PM


     for 5400.00. Stewart told Connor that he would be unable to transfer ownership of the firearm

     until he located the previous owner.

              Later that day, Sergeant Roberts. Detective Heberle, and Captain Anthony Q. McClure

     interviewed Stewart at the Aliquippa Police Department. Stewart told the officers that, on the

     morning of ~OYemher 11, :!OlO. he awoke to find Defendant in his residence. According to

     Stewart, Defendant stated that he had <lone something bad and proceeded to tell Stewart about

     the murder of Cameron. Defendant stated that he regretted bringing Cameron to Stewart's

     residence to purchase a gun because Cameron was working with the police and Cameron owed

     him $600.00. Defendant also stated that, at approximately         3:00 a.m, earlier that morning.

     Defendant went to Willie Martin· s residence to aet his monev from Cameron and cauzht
                                                           -             J                            "




     Cameron doing something .. foul .. as he entered the house. Defendant stated that he then aimed

    his gun atCarneron and demanded his money. According to Defendant. Cameron reached for his

    gun and a fight over Defendant's        gun ensued. Defendant stated that he ultimately struck

    Cameron with his gun and then shot him.

             Stewart told the officers that. following this conversation. Defendant asked Karas to clean

    his gun, and Karas complied. After cleaning the gun, Karas wrapped it in a black t-shirt and

    placed lt in Defendant's black book bag. Stewart indicated that Defendant offered to sell the gun

    lo   him but Stewart declined and suggested selling it to Connor. Defendant agreed. and Stewart

    went to Connor's residence to arrange the deal. Stewart stated that he gave Connor's money to

    Defendant and that Defendant handed Stewart the black hook bag containing the gun. Stewart

    then gave Che gun to Connor and returned the black book bag to Defendant,

             On F cbruary 1 7. 201 I, Detective Heberle. Captain M"'-Clurc. and Detective Tim Staub

    interviewed Roger L. Henderson, Jr. (hereinafter. "Henderson") regarding a statement Stewart


)
                                                                                           Circulated 06/30/2015 03:25 PM

               made to him. Henderson indicated that on December 29. 201 O. he met with Stewart       lo   exchange

         )     handguns; According to Henderson. Stewart stated that Defendant had previously given him a

               bloody handgun that was used in the shooting death nf Cameron,

                      On February l 8. 201 I. Sergeant Donald Couch of the Aliquippa Police Department

              submitted the Redhawk revolver and the mutilated bullet fragment seized from the crime scene

              to the Pennsylvania State Police Greensburg Regional Crime Laboratory. On February 24. 10J l ,

              The forensic scientist from the serology department at the Greensburg Laboratory notified

              Sergeant Roberts that the firearm tested positive for the presence of blood and that there would

              be future tests comparing the blood from the firearm with the blood samples obtained from

              Cameron. The forensic examination also revealed that the mutilated bullet fragment recovered

              from the crime scene was discharged from the Redhawk revolver.

                     On February 28, 201 L Captain McCJure submitted an application for a search warrant

             requesting that he be permitted to take the following actions: report to the Community College of
     )
              Beaver County. where Defendant was a student, and seize the black. book bag Defendant may be

             carrying and the black boots and black hoodic he may be wearing: transport Defendant to the

             Heritage Valley M edical Center so that two purple top rubes of blood may be extracted fl-om

             him: search Defendant's residence at 717 Washington Street. Aliquippa. Pennsylvania as well as

             the curtilagc for any black book bags .. 44 caliber ammunition. black boots, black hoodic, indicia

             of residence, and any other items believed to be associated with the shooting death of Cameron:

             and search any vehicles that are possessed by Defendant. ln support of his request. Captain

             J'\.kCJure · s application included the information listed above that was gathered from the witness

             interviews and initial investigation, At 8:40 a.m. on February 28. 2011. the Honorable Judge

             John P. Dnhanich signed and authorized Captain·~ \1eClurc · s search warrant application.


,)                                                            5
                                                                                          Circulated 06/30/2015 03:25 PM

                 After securing the search warrant. Captain McClure and other detectives proceeded to the

         Community College of Beaver County to execute the search warrant. Upon arriving at
    )
         Defendant's class. the detectives and campus security asked the instructor to have Defendant exit

         the classroom, Defendant stepped into the hallway. and the detectives put him in handcuffs. He

         was subsequently searched for weapons. and a campus security officer took the black book hag

         he was carrying and gave it to the detectives. Defendant was then transported to the detectives

         office, While at the office. the detectives discovered that the search warrant ( hereinafter.

         "unexecuted search warrant") they obtained earlier that day provided the wrong date of birth and

         wrong Pennsylvania Driver's License Number for Defendant. After realizing. their mistake, the

         officers transported Defendant back to the Community College and returned his book bag to him.

                Later that day, Captain McClure retyped the search warrant application and submitted it

        to Judge Dohanich, who signed and authorized it at 3 :20 p.m, Other than the corrected date of

        birth and driver's license number, the new search warrant contained the same information as the
)
        unexecuted search warrant. After obtaining the search warrant (hereinafter ... search warrant for

        Defendant's clothes. book bag. and blood .. ). the detectives proceeded   lo   Defendant's residence at

        approximately 5 :05 p.m, and searched the premises. seizing Defendant's black and plaid Dakine

        back pack from his living room as well as De fondant's Carhart black hooded jacket size 5X.

        black and yellow reversible hooded sweatshirt. and black Nike Reax size 13 shoes from his

        person. They subsequently transported Defendant to the Heritage Valley Medical Center to have

        Defendant's blood drawn. ultimately obtaining two purple capped tubes of Defendants blood.

               At approximately 9:00 p.m. on March 1. '.W 11. Captain ~1cClure again met with Stewart.

        who indicated that he received a call from Defendant on his cell phone earlier that evening.

        According to Stewart. Defendant related to Stewart how the police drew blood from him and
                                                                                  Circulated 06/30/2015 03:25 PM

     seized his book bag and some of his clothing on February 28. 2011. Defendant also indicated that

     he believed it was Karas. Alvin J. Flowers (hereinafter. =Flowers"], or a woman named Donzi

     Perry: (hereinafter. "Perry") who were providing information about Cameron's murder lo the

     police. Defendant explained that both Perry and Flowers had first-hand knowledge of the

     homicide because Perry was sitting outside of Willie Martins home when it occurred and

     Flowers was performing oral sex on Cameron inside ihc house just hefore Defendant shot

     Cameron. Stewart told Captain :\kCl ure that, at some point during his conversation with

     Defendant, Stewart suggested that they communicate by text message rather than talk on the

     phone. Defendant agreed. and the tv•.o sent several text messages to each other speculating about

     who was responsible for notifying law enforcement about the homicide. During the interview,

     Stewart permitted Captain McClurc to review the text messages using Stewart's cell phone.

    Captain McClure reviewed the messages and identified (724) 406&2036 as Stewart's cell phone

    number and (724) 513-[579 as the number for the cell phone Defendant was using.
)
            On March 3. 2:011. Captain vtcClure sent preservation letters to Cricket Communications

    and Sprint .' Nextel Communications to preserve the records from Stewart's and Defendant's cell

    phone numbers.     respectively.   Captain   :\kClure   requested   that the subpoena compliance

    departments of the companies preserve these records tor the period of February 18, 201 l tu

    March 3. 20 l I. On March I 1. 20 l l , the subpoena specialist for Sprint : Next cl Communications

    confirmed that the call detail records. subscriber information, and customer account notes for the

    cell phone number ( 724} 5 JJ- l 579 were being preserved. The subpoena specialist further

    indicated that a search warrant was required to release any content or stored communications.

           On March 14. 201 l. Captain \fcClurc submitted two search warrant applications

    requesting the billing and account information, call detail records. and text messages for



                                                      7
                                                                                              Circulated 06/30/2015 03:25 PM

          Stewart's and Defendant's eel] phones. The applications contained information obtained from the

    )     March I, -]011 interview of Stewart as well as the same information included in the application

         thr the search warrant for Defendant's clothes. book bag. and blood. On March 14, 2011, this

         Court signed and authorized the search warrant for Stewart' s cell phone records at 3:05 p.rn. as

         well as the scare h warrant for Defenda 11 f s eel I phone record s ( he re i na frer. "first searc h w arrant

         for Defendant's cell phone records") at 3: 15 p.m. Based on a review. of the record. no evidence

         was obtained as a result of these search warrants.

                 B. C rimlaal Proceedings

                 On July 18, 201 J. Sergeant Roberts filed a Criminal Complaint                  against Defendant,

         charging him with criminal homicide (18 Pa.CS.A. § 250 l(a )), robbery (                   rn   Pa.CS .A. §

         370l(a){ l )(i)), receiving stolen property ( 18 Pa.CS.A. § 3925(a)>. firearms not to be carried

        without a license ( 18 Pa.CS.A. § 6 l 06{ a)( I),. and crimes committed with firearms {18 Pa.C. S.A_

        § 6103). On the same day. a warrant was issued for Defendant's arrest. and Defendant was taken
)
        into custody. While incarcerated in the Beaver County Jail. Defendant s phone conversations

        were recorded. During these conversations, a message was broadcasted multiple times warning

        that the conversation was being recorded. On September 2. 201 J. a subpoena duces tecum was

        issued for recorded       telephone     conversations     involving   Defendant    from the date of his

        incarceration to September       1, 2011. Warden William Schouppe of the Beaver County Jail

        complied with the subpoena (hereinafter. "subpoena for jail recordings").

               On November 15. :!O I L a subpoena duces tecum was issued to Sprint .' Nextel for the

        subscriber information. call detail records including text messages. and cell site tower location

        data for cell phone number (724} 513-1579 for the dates and times of November 19. 2010 at

        12:00 p.m. to July 18.2011 at         1.:toO p.m.   Sprint: Nextel did not provide any of the requested
                                                                                   Circulated 06/30/2015 03:25 PM


     information except for a list of phone numbers and a letter stating thal the requested data could

)    not be supplied because the proper paperwork was not issued. As a result. on November 13.

     20 I L Detective Chamberlain submitted an application for search warrant requesting the same

     information for the period ofNovember     19. 2010 at 12:00 p.m. to November 18. 2011 at 12:00

     p.m. In the affidavit, Detective Chamberlain indicated that Stewart testified during the November

     9. 2011 preliminary hearing regarding communications he had with Defendant. Stewart testified.

     that he was receiving text messages from Defendant. who was using a cell phone with the

     number (724) 513-1579. Detective Chamberlain also indicated that he verified that this cell

     phone was active before. during. and after the investigation          into Cameron· s death. At

    approximately     I: 12 p.m. on Xovember 13. 10 l L Judge Dohanich signed and authorized the

    search warrant (hereinafter ... second search warrant for Defendants   cell phone records"), Sprint.'

    Nextel provided the requested information on December 5. 20 l 1.

              On that same- date, the Commonwealth fiJed an Information charging Def endant with

    criminal homicide. robbery, recci ving stolen property. and firearms not to be carried without a

    license. On \1ay 21. 2012. Defendant filed an Omnibus Pre-Trial Application, which included

    several different motions. A hearing on Defendaru's Application was held on June 1. :?OJ 2 and

    June 4. 20l2. During the hearing. the Court denied Defendant's request for a bill of particulars,

    and in an Order tiled on June 1 L .'.:!01.2. the Court addressed Defendant s discovery issues, On

    July 5, 20J 2, the Court issued an Order denying Defendant's Motion to Suppress Evidence.

              Trial in this matter commenced on August 6, 2011. During the testimony of Stewart. the

    Commonwealth       displayed to the jury a series nf photographs of text messages exchanged

    between     Defendant   and Stewart on March 1. 1011. Defendant initially objected to the

    presentation and admission of the photographs. and the Court overruled Defendam's objection.



                                                     9
                                                                                      Circulated 06/30/2015 03:25 PM

         On   August 10, 2012. Defendant filed a Trial Motion for Suppression of Evidence and Mistrial,

    \    seeking to suppress the text message exchange and all evidence derived from the seizure of it.
    !

         According to Defendant. Stewart testified that he sent text messages to Defendant at Captain

         ~vkClur~·s direction in violation of the Pennsylvania Wiretapping and Electronic Surveillance

         Control Act <hereinafter. "Wiretap Act"). The Court held a hearing on Defendant's Trial Motion

         on August 1-L 201:2 and issued an Order on August 15. 2012 denying Defendant's Trial Motion,

         The trial concluded on August 20. 20J 2 with a jury verdict of guilty on the charges of third

         degree murder. firearms not to be carried w. ithout a license. and receiving stolen property and a

        jury verdict or not guilty on the charges of first and second degree murder and robbery.

                On October 3. 2012. Defendant was sentenced to serve an aggregate term of 24 and one-

        half years to 51 years of incarceration and to pay an aggregate fine of S 1 1,500.00. In addition

        Defendant was ordered to pay restitution in th<: amounts of S9.440.t>O to the Pennsylvania State

        Police Laboratory    for lab fees, $1-71 LOO to Cameron's       father for funeral expenses. and
)
        56.500.00 to the Victims Compensation        Fund for funeral expenses. On October 15, 2012,

        Defendant filed an Omnibus Post-Sentence Application containing a Motion in Arrest of

        Judgment. a Motion for a New Trial. and a Motion for Modification of Sentence. Following the

        transcription of the notes of testimony. Defendant filed a Supplemental Omnibus Post-Sentence

        Application on January 2. 2012. Oral argument on Defendant's post-sentence motions was held

        on February 4. 2013. On February R. 2013. the Court issued an Order denying Defendant· s post-

        sentence motions.

               C. Defendant's First Appeal

               On March 5. 2013. Defendant filed an appeal of the February 8. 2013 Order. That

        appellate case was docketed as Case '\'o. 424 WDA 2013. Defendant was directed to fi1e a Rule



                                                        10
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      1925(b)     statement which he submitted on March 25. 2013. Defendant raised numerous

)    allegations of error in his 1925(b) statement. An extensive J 925(a) Opinion was issued on April

     29. 2013 addressing the twenty-one issues.

                Defendant's counsel. Dennis Di:'vfartini, was granted three extensions by the Superior

     Court to file an Appellate Brief. The first extension was granted on J unc 20. 20 l 3. the second on

     September 19, 2013. and the third on Novem bcr 2~. 2013. Defendant's counsel then failed either

     to file an Appellate Brief or to request another extension. The Superior Court dismissed

     Defendant's appeal on January 2:2. 201-4- for failure to file a Brief.

            D. Defendanr's Cu rrcnt Appeal

            Defendant's case having been dismissed due to his counsel's failure to file an Appellate

     Brief or request an additional extension. Defendant himself ti led pro se a Post Conviction Relief

    Act Petition on March 17. 2014. On April J.1014, new counsel was appointed for Defendant and

    Defendant ·°' Motion for an extension of time in which to file an amended PCRA petition was
)
    granted on May 7. 2014. The Amended PCRA Petition was tiled on July 7. 2014. Through his

    Amended PCRA Petition. Defendant argued ineffective assistance of his prior counsel. Dennis

    Di Martini. on the basis of counsel's failure to file a timely brief which resulted in the dismissal

    of Defendant's     first appeal. Defendant !3 sole request for relief was that his appeal rights be

    reinstated nunc pro tune.

           On September 19. 10 I 4. The Court signed an Order reinstating Defendant s appellate

    rights and granting him 30 days in which to file a. notice of appeal, Defendant filed his notice of

    Appeal on October 17. 2014. On October 31. 2014. the Court issued an Order directing

    Defendant to file a 1925{b) Concise Statement of Matters Complained of on Appeal. Defendant

    filed his Concise Statement the same day. raising: only two issues. These rwo issues, challenging



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              the sufficiency      of the evidence      with regard to the Receiving Stolen Property charge and the

        )     propriety of Defendant's sentence, are the same first two issues previously raised by Defendant's

              counsel Dennis Di Martini in his l 925( b] Concise Statement (rum his first appeal,

                                                                   ANALYSIS

                       The Court has reviewed Defendant's new Concise Statement and the                            (\VO   issues now

              raised appear to be the same as those previously addressed hy the Court in its first I 925ta}

              Opinion. In the interests of judicial efficiency, rather than simply referring to an attached copy of

             this Court's lengthy response to the twenty-one issues previnusly raised by Defendant' s counsel

             Dennis Di:Man1n1. this Court instead will, for the convenience of appellate review, reproduce

             here only those portions fmm the Court's first 1925(a) opinion which may be relevant to the two

             issues being now raised again. Although the sentencing issues complained of in Defendant's first

             Concise Statement were broader than those which arc raised at present appear co be. in order to

             comprehensively address any of Defendant's legitimate sentencing issues. the Court's entire
    )
             sentencing analysis is here included with additional explanatory footnotes distinguishing
                                                                           1
             Defendant's first and second Concise Statements.

                      A. Sufficiency of t2,:idcncc

                      Defendant's      first allegation    or error   is that the Court improperly held that the record

            evidence was sufficient to support the finding that Defendant was guilty of receiving stolen

            property; When reviewing a sufficiency of the evidence claim, the standard to be applied is

            whether the evidence, when viewed in the light most favorable to the verdict winner, is sufficient



            i Ncvcrthcicss. Defendant 1:-. hmned to rhose issues raised in his present 19251 b) Concise Statement. C'om. ,·. Rut]er,
            571 P.J. -1-1 l. 445. 812 ,\.~d 63 l. 6'.U (JOO:? J ("'In lord, however, this Court climmated any aspect of discretion and
            c.~1.abll~hed a bright-line rule for waiver under Ruic 192.5: ·[i]n order to preserve their claims for appellate review.
            [ajppellants must comply whenever the trial court orders them t" file a Statement of Matters Complained of on
            Appeal pursuant lo Ruic 19~5. Any issues not raised in a 19::!~(b} statement 1\"l"/1 ht' deemed waived. · lord, 7] 9 A.~d
            at 309 ( emphasis added). Thus. \\<li\ er under Rule 1915 is automatic." 1.
)
                                                                                        Circulated 06/30/2015 03:25 PM

         to enable the fact-finder lo find that all of the clements of the crimes were established beyond a

    )    reasonable doubt. Commomvcalth v. Hartzell, 2009 Pa. Super. 137. 988 A.2d 141. 143 (2009).

         The Court is also required to give the Commonwealth the benefit of all reasonable inferences to

         be drawn from the evidence. Commonwealth r. Kendricks. 2011 Pa. Super. 2 l S, 30 A.3d 499,

         508 (2011 ). In applying this standard. the entire record and all evidence should be evaluated and

         considered. Commonwealth ,·. Hairston. 603 Pa. 660. 668. 985 A.:!d 804, 809 (2009) (citing

         Commonwealth v. Kennedy. 598 Pu. 621. 959 A.2d 916, 9.:W (2008)). ··Any doubts regarding a

         defendant's   guilt may be resolved by the fact-finder unless the evidence is so weak and

         inconclusive that as a matter of law no probability of fact may be drawn from the combined

        circumstances," Commonwealth v. Brown, 201 l Pa. Super. 67. 23 A.3d 544. 559 (2011 ) .

                .. A person is guilty of [receiving stolen property] if he intentionally receives. retains, or

        disposes of movable property of another knowing that it has been stolen. or believing that it has

        probably been stolen. unless the property is receiving, retained or disposed with intent to restore

        it to the owner." 18 Pa.C.S.A.   * 3925(a). Accordingly. the elements of receiving stolen property
        are as follows: ( 1) intentionally acquiring possession. control or title. retaining. disposing. or

        lending on the security of movable property of another; (::?.) with knowledge or belief that it was

        probably stolen: and {3) intent to deprive permanently. Commonwealth            Y.   Young. 1011 Pa,

        Super. '277. 35 A.Jd 54, 63 (201 l ).

                In his Rule     I 925(b) statement.   Defendant    does   nol   specify what part of the

        Commonwealth's     case chat he found lacking with respect to the receiv ing stolen property charge.

        In his Omnibus Post-Sentence Application. however, Defendant claims that insuffici c"Ilt evidence

        was presented at trial to establish the second clement of receiving stolen property. that he had

        knowledge that the Redhawk revolver was probably stolen. Defendant states that the only


)                                                        13
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             evidence presented    at trial that relates to this element is the evidence that he did not steal the gun

        )    and the evidence that he was in possession of the gun six months after it was reported stolen.

             Defendant argues chat possession of a stolen item six months after it was reported stolen does not

             support an inference that Defendant knew the firearm was stolen.

                     The Superior Court of Pennsylvania has stated:

                     [AJ permissible inference of guilty knowledge may be drawn from the
                     unexplained possession of recently stolen goods without infringing upon an
                    accused's right of due process or his right against self-incrimination, as well as
                    other circumstances. such as the accused's conduct at the time of the arrest.
                     Nenctheless, the mere possession of stolen property is insufficient to prove guilty
                    knowledge. and the Commonwealth must introduce other evidence, which can be
                    either circumstantial or direct. that demonstrates that the defendant knew or had
                    reason to believe that the property was stolen. This additional evidence can
                    include the nature of the goods. the quantity of the goods involved. the lapse of
                    time between possession and theft. and the ease with which the goods can be
                    assimilated into trade channels. Further. whether the property· has alterations
                    indicative of being stolen can be used to establish guilty knowledge. Finally. even
                    if the accused offers an explanation for his possession of stolen property, the trier
                    of fact may consider the possession as unexplained if it deems the explanation
                    un sati s foe tory,
    )
            Commonwealth       v. Foreman. 1002 Pa. Super. 125, 797 A.2d 1005. 1012· l 3 (2002) (internal

            citations omitted). Other factors to consider .. include but arc not limited to the unexplained

            possession of recently stolen property, flight from the police or other evidence indicating an

            attempt to avoid capture and the condition of the property indicating a theft." Common,i,:ealth \.

            Carson, 405 Pa. Super. 492, 497. 592 A.2d 1318. 132 J ( 1991 ).

                   Defendant      is correct chat some of the testimony at trial indicated that he was in

            possession of the firearm six months after it was reported stolen. James Sarvey. the record owner

            of the firearm, testified on redirect examination that he would have no reason to doubt a. Raccoon

            Township police report which indicated that the firearm was stolen on May 8, 20l0. 'S'.T ..

            it 13: 12_ at 2 l. He also tcsti fied. however. that he believed he reported the firearm stulen on


)
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         October 10. 20 I 0. ld. at l 7. F urthermore, there was evidence presented at trial indicating that

    )    Defendant was in possession o r the stolen firearm earlier than six months after it was reported

         stolen. Larry Alston testified that he gave Defendant a ride to the community college in August

         or September of 2010 and observed in Defendant's bookbae the barrel of a revolver that matched

         the description of the Redhawk revel vcr, Id. at 25_ 18. As a result. the jury was presented with

         evidence indicating that Defendant was in possession of the stolen firearm one, three. or four

         months after it was reported stolen. The Court concludes that chis was sufficient evidence to

         permit the jury to find that Defendant was in possession of the firearm sooner than six months

        after it was reported stolen.

                In addition to this evidence. the jury was entitled to consider the nature of the stolen

        property. As a firearm, the Rcdhawk revolver         will>   subject to a highly regulated process to

        achieve legal transfer of ownership, Substantial evidence was presented at trial indicating that

        Defendant. in selling the Rcdhawk revolver, enlisted Stewart, a known illegal firearms trafficker.

        to act as his agent. When the Redhawk revolver was sold to Connor, no proof of ownership was

        provided by Defendant and no legal transfer of ownership occurred, even though Connor made

        known that his fulJ payment for the firearm was conditioned upon the transfer of ownership,

        l\.T., 8.'8:l2. at .27-29. 40. The absence of any documentation         demonstrating the legality of

        Defendant's possession and sale of the Redhawk revolver as well as Defendant's decision to sell

        the firearm with the help of a known illegal firearms trafficker permits an inference of guilty

        knowledge. when combined with the evidence of Defendant's              unexplained possession of the

        firearm approximately    three months after it was reported stolen. There is no indication that

        Defendant challenges the sufficiency of the evidence for any other clement of the receiving




)
                                                        15
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                stolen property       charge. Therefore,       the Court concludes         that   sufficient evidence was presented at

          )     trial for the jury to find Defendant guilty of receiving stolen property.

                           B. Sentencing

                           [n   his next issue on appeal, Defendant challenges various aspects of the sentence irnpnsed

                upon him by this Court on October 3. 201:!. Specifically, Defendant states in his J925(b)

                statement:

                         The Court abused its discretion in imposing an aggregate of consecutive
                         minimum and maximum sentences carefully designed to impose a virtual life
                         sentence contrary to the \ erdict by imposing the virtual maximum penalty
                         permitted under the Sentence Code, where the Offense Gravity Score (O.U.S.) for
                         Currying Firearm Without a License was incorrect nothing in the record could
                         support a finding. of either an aggravating circumstance or the death had a great
                         impact on the community, evidence in the record could support a finding of
                         mitigated circumstances. and amounts to an unwarranted expression of victim
                         family sympathy. and the monetary penalty disregarded the rehabilirarive needs of
                         Defendant and is tantamount to cruel and unusual punishment.t

               De Cs 19~5(b) statement. The Superior Court has repeatedly stated:

      )                  Sentencing is a matter vested in the sound discretion of the sentencing judge, and
                         a sentence wi II not he 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.

              Common~walth v. Glass . .2012 Pa. Super. 137, 50 A.Jd 720. 7'27 (2012). ··The rationale behind

              such broad discretion and the concomitantly deferential standard of appellate review is that the

              sentencing        court is "in the best position to de term inc the proper penalty for a particular offense

              based upon an evaluation of the individual circumstances before it. ... Commonwealth ,·. Perrv,



              = Defendant s prcse nt Cone i se Statem enr stares on b ... The Tri a I Court ab used its di screii on in i Illposing consec ut he
              sentences, usmg an mcorrect offense gra\·ity ~.::0r1: 0f9 (loaded weapon) rather than '.\ which resulted in an unduly
              harsh sentence, without considering Mr. Weekleys specific circumstances and rchabihtauve needs when compared
              to the need to protect the public." J'hus, it appears that Defendant's present sentencing issue complained of on
              appeal i~ m~re narrow and focused 1han that prev iously raised.
,,'
      )
                                                                              I6
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              612 Pa. 557. 565. 32 A.3d 232. 236 {2011) (citing Commonwealth,·. \Valls. 592 Pa. 557. 926

    )         A.2d 957 {1007) ). "Moreover. the sentencing court enjoys an institutional advantage to appellate

              review, bringing to its decisions an expertise. experience. and judgment that should not lightly be

              disturbed." Id. at 137. Nevertheless. the Court's discretion is not unfettered ... When imposing a

              sentence. the sentencing court must consider the factors set out in 42 Pa.C.S.            * 9721 (h l, that is.
              the protection of the public. gravity of offense in relation to impact on victim and community.

             and rehabilitative needs of the defendant" as well as the sentencing guidelines, Commonwealth

             \', C4.b.-erson, 2011 Pa. Super. 255. 34 A.3d 135. 144 {Pa. Super.2011).

                     For several reasons. Defendant requests that the Court decrease the minimum and

             maximum sentence for each count with which he was charged. run the sentences on the lesser

             counts concurrently. and lower the monetary penalty. In response to Defendant" s overall request

             for a reduction in his sentence. the Court offers the following general explanation for the

             sentence imposed.' Following a lengthy jury trial. Defendant was convicted of third degree
)
             murder. receiving stolen property. and firearms not to be carried without a license. The evidence

             presented indicated that Defendant shot the victim at close range. execution style. behind the car

             in the back of the head. The shot fired was powerful enough to destroy a large portion of the

         victim's skull and travel through a nearby wall before coming to rest on the porch outside. The

             firearm Defendant used was a .44 Magnum revolver with a l2-inch barrel. The jury determined

         that the firearm was stolen and that Defendant knew or should have known that it was stolen.

         Under 18 Pa.C.S.A.         § 6105(a)(l) and (b). Defendant            was prohibited       from possessing or

        transferring a firearm due to his prior conviction for burglary. which was found to be a home

        invasion and therefore constituted a crime of violence, Defendant disregarded this prohibition


        .tThi: Court also our lined the reasoning for its sentence during the sentencing hearing on October 3. ~O l.:!. ~-L
        10 3 l~ . .it 97-100.
)
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           and committed       third degree murder using an illegal weapon. Defendant's actions demonstrate

     )     that he poses a significant threat to the public, especially in light uf the fact that Defendant

          exhibited no remorse or sympathy whatsoever for the loss suffered by the victim· s family.

          Defendant · s crimes cannot be attributed to youth. nor can his mistakes be blamed upon his

          environment or his chosen lifestyle being the only one available to him. Defendant was a 27·

          year-old adult at the time these crimes were committed. Prior to committing                     th1..."SC   crimes.

          Defendant had numerous educational and athletic opportunities available to him. He received

          athletic scholarships and attended five different colleges. hut, in one way or another, Defendant

          neglected to take full advantage of these opportunities. Instead, Defendant chose a path that

          ultimately led to the shooting. death of Cameron. In light of these considerations and after a

          thorough review of the pre-sentence report 4. sentence guidelines. and applicable law. the Court,

          acting within its discretion. imposed its sentence upon Defendant.

                   Defendant     claims that the aggn:gatc sentence imposed constitutes                 a ··virtuaJ life

         sentence." Defendant was sentenced           10   undergo imprisonment for 24 and one-half years to 52

         years after being found guilty of third degree murder. receiving stolen property. and firearms not

         to be carried without a license. At the time of sentencing, Defendant was 29 years old. Such a

         sentence does not constitute a "virtual life sentence." Furthermore. Defendant cites no authority

         demonstrating how this sentence, which is permitted by statute and within the sentencing

         guidelines. is somehow a misapplication of the law or a manifestly unreasonable decision.

                  Defendant also claims in his allegation of sentencing error that the Court imposed the

         virtual maximum penalty allowed by the Sentence Code. Defendant does not assert that tbe

         sentence was either prohibited by statute or contrary to the sentencing guidelines themselves. Jn

         " "[ WJh~re the trial court is tnforrncd by a pre-sentence report. it is presumed 1ha1 the court i~ aware of all
         appropriate sentencing factors and considerations." Conunouweahh \", Vemura. '.!QQ9 Pa. Super. 96. 975 A.~d 11~8.
         l 135 {~009).
,)
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          addition.    Defendant     does not indicate        why a sentence that was, in his words. the "virtual

    )     maximum penall) ·· was not appropriate in this instance. Assuming Defendant is alleging that it

          was error to run his sentences consecutively, the Court notes that .. the imposition of consecutive.

          rather than concurrent. sentences may raise a substantial question in only the most extreme

          circumstances. such as where the aggregate sentence is unduly harsh, considering the nature of

          the crimes and the length of imprisonment." CummonwcaJth \', Lamonda. 2012 Pa. Super. 180.

          5::! AJd 36.5. 372 (2012). Taking into account the nature of Defendan f~ crimes. it cannot be said

         that the aggregate sentence was unduly harsh.

                   Defendant also suggests that the calculation of the offense gravity score for the count of

         firearms not to be carried without a license was incorrect.i ln his Omnibus Post-Sentence

         Application. Defendant states chat {he offense gravity score was determined to be nine. indicating

         that the firearm Defendant carried was loaded. as opposed to seven. indicating that the firearm

         was unloaded. Defendant argues that nothing was presented at trial showing that the firearm was
    )
         loaded while he carried it concealed. The jury was able to infer from circumstantial evidence that

        the Redhawk revolver was loaded at the time of concealment. Substantial evidence presented at

        trial demonstrated that Defendant frequently carried the firearm in his hook hag. lt is unlikely

        that Defendant upon shooting Cameron. failed to conceal the firearm as he walked to Stewart's

        residence. It is also illogical that Defendant would conceal the gun when it was unloaded. as he

        did in Stewarts residence, hut carry it unconcealed when it was loaded. Furthermore, the jury

        could infer from statements made during the trial that Defendant concealed the loaded weapon

        prior to shooting Cameron. for example. Stewart testified that De fondant told him he "pulled out

        his gun" before struggling with and eventually shooting Cameron. ~.T .. 8:8· l.2, at 126. The jury


        ~ Mere Defendant' s previous issee raised in his first appeal appears identical 10 that n(m argued in his instant appeal.
        challenging applicanon of a gra\ i1y score c,f9 for a loaded weapon. as opposed ro 7 tor an unloaded weapon,
)
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                                                                                         Circulated 06/30/2015 03:25 PM

          could infer from this testimony that Defendant had concealed the loaded Redhawk rcvol ver,

     )    Therefore. the use of an offense gravity score of nine was appropriate in this case.

                  Defendant also asserts that nothing in the record could support a finding of an

          aggravating circumstance or that the- victim's death caused a great impact on the community. The

          Court notes that Defendant was not sentenced in the aggravated range. He was sentenced in the

          standard range. but the sentences were run consecutively. Further. the sentence imposed was not

          ~oldy based on the impact Cameron's death had on the community. The Court stated its reasons

          for the sentence imposed during the sentence hearing and previously in this Opinion. Apart from

          again restating its rationale for the sentence imposed. the Court is unable to address this issue

          other than to note that it acted within its discretion in sentencing Defendant. See Commonwealth

          v. Boyer, 2004 Pa. Super. 303. 856 A.2d 149 (2004) (concluding that the court did not abuse its

         discretion in imposing a series of consecutive.        standard range sentences when the court

         considen .xl the prescntcncc report and the particular circumstance of the crime).
 )
                 Defendant next argues that evidence in the record could support a finding of mitigated

         circumstances.   In his Omnibus      Post-Sentence   Application.   Defendant   elaborates    on this

         argument .. stating that a minimum     sentence in the mitigated range was warranted because

         Defendant nearly completed a Bachelor's degree and had a reputation for being a peaceful

         person. The Court was aware of these factors and weighed them along with ocher considerations

         in determining Defendanr's sentence. For example, the Court weighed the factors raised by

         Defendant along with the fact that Defendant had a previous conviction in a home invasion

         burglary. In light of these and many other factors. Defendant was not entitled to a minimum

         sentence in the mitigated range.




 )
,I
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             Defendant also claims that the sentence imposed amounted to an unwarranted expression

')   of "victim family sympathy." Again, the Court outlined its reasons for Defendant· s sentence in

     this Opinion and during the sentencing hearing. Defendant offers no explanation as to why the

     sentence imposed amounted to an unwarranted expression of sympathy for the victim's family,

     Be fore issuing De tendant' s sentence, the C ourt did state: ··J will express my sympathy              lo   the

     Cameron family for the loss that they have incurred." \:.T .. 10.J:12. at 97-98. Apart from this

     statement. however. there is no indication that the Court was motivated by sympathy for the

     victims family. and Defendant cites no authority holding that such a statement constitutes an

     abuse of discretion.

                                              COI\CLUSIO:"i

            Based on the foregoing reasons, the Court concludes that the issues Defendant raises in

     his present i 925(b) statement are without merit. Therefore. the Court respectfully submits {hat

     the judgment of sentence should be affirmed. The Beaver County Clerk of Courts is hereby
)
     directed to file the record of proceedings in this case with the Superior Court of Pennsylvania,



                                                                                     BY THE COLiR T.




                                                                                                             J.




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