J-A08021-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
JARED D. ENGLEMAN,                        :
                                          :
               Appellant                  :
                                          :
                                          : No. 1320 MDA 2014

        Appeal from the Judgment of Sentence Entered May 5, 2014,
              in the Court of Common Pleas of Berks County,
           Criminal Division, at No(s): CP-06-CR-0003668-2011

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

MEMORANDUM BY STRASSBURGER, J.:                FILED DECEMBER 08, 2015

      Jared D. Engleman (Appellant) appeals from a judgment of sentence

entered after a jury convicted him of criminal conspiracy - possession of a

firearm prohibited. We affirm.

      The factual and procedural history underlying this matter can be

summarized as follows. On June 29, 2011, Lieutenant Adam R. Kosheba of

the Pennsylvania State Police Fugitive Apprehension Unit was part of a task

force1 put together to serve an arrest warrant on Matthew Connor

(Matthew).    Matthew was believed to be in the area of the home of his

father, Maurice Connor (Maurice), located near Pine Swamp Road in Albany

Township, Berks County.     When Matthew was located, a Norinco Mak-90


1
 Other agencies involved in this task force were the United States Marshals
Service and the Berks County Sheriff’s Department.

*Retired Senior Judge assigned to the Superior Court.
J-A08021-15


Sporter, an AK-47 type weapon (AK-47), was at his feet.2 The AK-47 was

loaded.   Subsequently, Detective Kurt Tempinski tested the weapon and

found it to be in working condition.

      On July 1, 2011, Trooper Robert Norton interviewed Appellant at

Engleman’s Auto Body.     Appellant told Trooper Norton that he had known

Matthew since they were 13 years old. During the course of the interview,

Appellant described Matthew as “being off his rocker.” N.T., 3/6/2014, at 75.

Appellant told Trooper Norton that Matthew “was very into firearms and

guns and shooting.” Id. at 76-77. Appellant informed Trooper Norton that

he and Matthew “would go to the shooting range down the street from the

Connor residence on Pine Swamp Road and that … sometimes [Maurice]

would accompany them.” Id. at 97.        Appellant stated that when Maurice

went with Matthew to the shooting range, Matthew used firearms belonging

to Maurice. Id. at 98.

      Appellant also told Trooper Norton about the AK-47.     Appellant said

that he had purchased the AK-47 from Army and Navy in Whitehall,

Pennsylvania in 2004, and subsequently sold it to Maurice in a face-to-face

transaction. Appellant also sold a .17-caliber rifle to Maurice several years



2
  Sheriff’s deputy Kyle Pagerly and his K-9 partner were searching behind
the home in connection with the task force. Matthew pointed an AK-47 at
Pagerly, an exchange of gunfire ensued, and both Pagerly and Matthew were
killed.   The jury did not hear any testimony about the circumstances
surrounding the deaths of either Pagerly or Matthew.


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J-A08021-15


later. Appellant told Trooper Norton that it “was a common practice for him

to issue or sign a handwritten receipt acknowledging that the firearm was

transferred from him to another party.” Id. at 86.         Appellant signed an

affidavit confirming this information at the close of the interview. Id. at 89.

      On July 6, 2011, police executed a search warrant at Maurice’s

residence. At that time, Maurice provided the troopers with a receipt, signed

by Appellant, which confirmed the sale of the .17 caliber rifle from Appellant

to Maurice in 2009.    During the execution of this search warrant, Trooper

Robert E. Hess viewed “numerous guns and gun safes, as well as numerous

receipts for guns that [Maurice] had purchased.” Id. at 153.            In fact,

Maurice had receipts dating back to the mid-1960s. No receipt for the AK-

47 was located.

      On August 19, 2011, Trooper Norton, along with Trooper Hess,

returned to Engleman’s Auto Body and arrested Appellant.         Appellant told

the troopers that he sold the AK-47 to Maurice because at the time of the

sale Appellant was “living out of his truck and needed money.” Id. at 157-

58. Appellant told the troopers “that he had heard from other people that

[Matthew] wasn’t supposed to have guns, but he characterized that

information as coming from no one credible.” Id. at 96. Additionally,

Appellant told the troopers that “he believed about two to three years prior

to this interview that [Matthew] had gotten arrested for shooting at cops.”




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Id. at 96. Appellant was also “aware at one point [Matthew] had been sent

away to a mental institution” while they were still in high school. Id. at 96-

97.

      Appellant was charged with two violations of the Pennsylvania Uniform

Firearms Act (UFA): 1) a felony for one who “knowingly or intentionally sells,

delivers or transfers a firearm under circumstances intended to provide a

firearm to any person, purchaser or transferee who is unqualified or

ineligible to control, possess or use a firearm” pursuant to 18 Pa.C.S.

§ 6111(g)(2); and 2) a misdemeanor for loaning, lending, or giving a

firearm in violation of UFA pursuant to 18 Pa.C.S. § 6115(a). Appellant was

also charged with conspiracy to commit a violation of the UFA pursuant to 18

Pa.C.S. §§ 903(a)(1) and 6105(a).     These offenses arose from the sale of

the AK-47 which Appellant had purchased originally on October 19, 2004.

      Appellant was tried before a jury on March 6-7, 2014. The jury found

him guilty of conspiracy to commit persons not to possess a firearm, and not

guilty of selling a firearm to someone who is ineligible to possess one.3

      On May 5, 2014, Appellant was sentenced to two to four years of

incarceration.   Appellant timely filed a post-sentence motion, which was

denied on July 21, 2014. Appellant timely filed a notice of appeal, and both

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

3
  It is unclear what happened to the charge for violating 18 Pa.C.S.
§ 6115(a) other than that it was “withdrawn.” N.T., 3/7/2014, at 32.


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      On appeal, Appellant sets forth arguments with respect to the

sufficiency of the evidence to sustain his conviction, the statute of

limitations, and the discretionary aspects of his sentence. Appellant’s Brief at

13-14.   We begin with an analysis of the sufficiency of the evidence. Our

standard of review in determining whether the evidence was sufficient

         requires that we consider the evidence admitted at trial in
         a light most favorable to the Commonwealth, since it was
         the verdict winner, and grant it all reasonable inferences
         which can be derived therefrom. The evidence, so viewed,
         will be deemed legally sufficient to sustain the jury’s
         conviction on appeal only if it proves each element of the
         offense charged beyond a reasonable doubt.

Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (citation

omitted).

      Appellant was convicted of criminal conspiracy to commit persons not

to possess firearms pursuant to 18 Pa.C.S. §§ 903(a)(1) and 6105(a), which

provide, in relevant part, as follows.

      § 903. Criminal conspiracy

      (a) Definition of a conspiracy.--A person is guilty of
      conspiracy with another person or persons to commit a crime if
      with the intent of promoting or facilitating its commission he:

            (1) agrees with such other person or persons that
            they or one or more of them will engage in conduct
            which constitutes such crime or an attempt or
            solicitation to commit such crime….




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J-A08021-15


      § 6105. Persons not to possess, use, manufacture,
      control, sell or transfer firearms

      (a) Offense defined.--

            (1) A person who has been convicted of an offense
            enumerated in subsection (b) … shall not possess,
            use, control, sell, transfer or manufacture or obtain a
            license to possess, use, control, sell, transfer or
            manufacture a firearm in this Commonwealth.

18 Pa.C.S. §§ 903(a)(1) and 6105(a)(1).

      “[T]o sustain a conviction for criminal conspiracy, the Commonwealth

must establish that the defendant (1) entered into an agreement to commit

or aid in an unlawful act with another person or persons, (2) with a shared

criminal intent and (3) an overt act was done in furtherance of the

conspiracy.” Commonwealth v. Murphy, 795 A.2d 1025, 1037-38 (Pa.

Super. 2002) (quotations omitted). The Commonwealth and Appellant agree

that, in order for this conviction to stand, the Commonwealth had to prove

beyond a reasonable doubt that Appellant and Maurice 4 entered into an

agreement. Appellant argues that there is no evidence that Appellant and

Maurice entered into any agreement to have Matthew possess the AK-47.

Appellant’s Brief at 19-21.




4
  The Commonwealth could sustain its burden by proving either that
Appellant sold the AK-47 to Maurice so that Matthew could possess it or that
Appellant sold the AK-47 to Matthew. Because we conclude that the
Commonwealth sustained its burden as to Maurice, we need not consider
any alleged agreement to sell to Matthew.


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J-A08021-15


      In considering this issue, “we bear in mind that the Commonwealth

may sustain its burden by means of wholly circumstantial evidence, and the

trier of fact, while passing upon the credibility of witnesses and the weight of

the evidence, is free to believe all, part, or none of the evidence.”

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013) (quotations

omitted).

      [A]ny doubt about the defendant’s guilt is to be resolved by the
      fact finder unless the evidence is so weak and inconclusive that,
      as a matter of law, no probability of fact can be drawn from the
      combined circumstances. It is improper for this Court to re-
      weigh the evidence and substitute our judgment for that of the
      fact-finder. Additionally, the entire record must be evaluated
      and all evidence actually received must be considered.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (quotation

omitted).

      “A    conspiracy   is   almost   always   proved   through   circumstantial

evidence.    The conduct of the parties and the circumstances surrounding

their conduct may create a web of evidence linking the accused to the

alleged conspiracy beyond a reasonable doubt.”             Commonwealth v.

Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (quotations and citations

omitted).

             Among the circumstances which are relevant, but not
      sufficient by themselves, to prove a corrupt confederation are:
      (1) an association between alleged conspirators; (2) knowledge
      of the commission of the crime; (3) presence at the scene of the
      crime; and (4) in some situations, participation in the object of
      the conspiracy. The presence of such circumstances may furnish



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J-A08021-15


      a web of evidence linking an accused to an alleged conspiracy
      beyond a reasonable doubt when viewed in conjunction with
      each other and in the context in which they occurred.

Id. (citations and quotations omitted).

      Instantly, Appellant testified that he sold the AK-47 to Maurice

because he “needed the money.” N.T., 3/6/2014, at 187. Moreover,

Appellant knew that Maurice and Matthew used guns together. Specifically,

Appellant testified that he saw Matthew with a firearm “a few times” prior to

2011 “and that was with [Maurice] at the rifle range.” Id. at 191.

Additionally, Trooper Norton testified that Appellant told him that, “when

[Maurice] was present at the range, [Matthew] would use firearms that

belonged to [Maurice].” Id. at 98.

      This evidence must be considered together with the missing receipt for

the AK-47, and the conclusions a jury could infer from its absence.

Appellant testified that consistent with his common practice, when he sold

the AK-47 to Maurice he gave Maurice “a receipt written on a piece of

paper.” Id. at 189. Moreover, during a search of Maurice’s house, Maurice

provided the troopers with a receipt, signed by Appellant, which confirmed

the sale of a .17-caliber rifle from Appellant to Maurice in 2009. During the

execution of the search warrant, Trooper Hess found receipts dating back to

the mid-1960s. However, there was no receipt for the AK-47. Furthermore,

Appellant testified that Maurice interacted with Appellant at the firing range




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J-A08021-15


and purchased at least one firearm from Appellant. Despite this evidence,

Maurice testified that prior to June 29, 2011, the date on which the AK-47

was recovered from Matthew, Maurice had never “met or been introduced

to” Appellant. Id. at 111-112.

      We hold that this testimony establishes a “web of evidence” whereby

the jury could reasonably conclude that Appellant and Maurice entered into

an agreement that Appellant would sell the AK-47 to Maurice so that

Matthew could possess it. Notably, the missing receipt in combination with

Maurice’s testimony that he had never met Appellant despite all evidence to

the contrary, when viewed in the light most favorable to the Commonwealth

as the prevailing party, is sufficient evidence to establish a clandestine

agreement between Appellant and Maurice to place the AK-47 in Matthew’s

possession.

      We now turn to the analysis of the other element of this crime,

whether there was a shared criminal intent. Specifically, we must determine

whether Appellant knew that Matthew was a person not to possess a

firearm.5

            The general rule of law pertaining to the culpability of
      conspirators is that each individual member of the conspiracy is
      criminally responsible for the acts of his co-conspirators

5
  Matthew’s juvenile probation officer, Matthew Crouse, testified that in
2002, Matthew was adjudicated delinquent for the felony of burglary. It is
undisputed that a juvenile adjudication for burglary disqualifies that
individual from possessing a firearm in Pennsylvania.


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J-A08021-15


      committed in furtherance of the conspiracy. The co-conspirator
      rule assigns legal culpability equally to all members of the
      conspiracy. All co-conspirators are responsible for actions
      undertaken in furtherance of the conspiracy regardless of their
      individual knowledge of such actions and regardless of which
      member of the conspiracy undertook the action. The premise of
      the rule is that the conspirators have formed together for an
      unlawful purpose, and thus, they share the intent to commit any
      acts undertaken in order to achieve that purpose, regardless of
      whether they actually intended any distinct act undertaken in
      furtherance of the object of the conspiracy. It is the existence of
      shared criminal intent that is the sine qua non of a conspiracy.

Commonwealth v. Wayne, 720 A.2d 456, 463-64 (Pa. 1998) (internal

citations and quotations omitted).

      It is Appellant’s position that the Commonwealth had to prove that

when Appellant transferred the AK-47 to Maurice, Appellant knew that

Matthew was a person not to possess a firearm because he had been

adjudicated delinquent for burglary. Appellant further argues that not only

did the Commonwealth fail to prove that Appellant knew Matthew was a

person not to possess a firearm, but also that the trial court’s instruction to

the jury in this regard was reversible error.

      The Commonwealth concedes that Appellant did not know the true

reason for Matthew’s disqualification from possessing a firearm.6 However,

the Commonwealth argues that Appellant did not need to know the true



6
  The Commonwealth notes that “nothing in the record indicates that
[Appellant] was aware of [Matthew’s] prior adjudication for [burglary].”
Commonwealth’s Brief at 16.



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J-A08021-15


reason for Matthew’s disqualification, but only needed to believe that

Matthew was not permitted to possess a firearm lawfully.

      The Commonwealth had to prove that at the time Appellant sold the

firearm to Maurice he was aware that Matthew was not permitted to possess

a firearm. Whether he held that belief for the correct reason, the juvenile

adjudication for burglary, or he mistakenly believed that it was Matthew’s

time spent in a mental institution that disqualified him, is not relevant; the

issue is Appellant’s state of mind at the time he entered into the agreement

with Maurice.     Through the following testimony, the Commonwealth

presented sufficient evidence to prove beyond a reasonable doubt that

Appellant believed that Matthew could not lawfully possess a firearm.

      Appellant told Trooper Norton that

      he was aware that [Matthew] had an incident or was involved in
      an incident earlier in his life where [Matthew] pointed a firearm
      at some police officers that had responded to the house. He had
      also stated that shortly after that incident with the police he
      knew that [Matthew] was sent away to a mental institution.

           And from these items -- from these bits of information,
      [Appellant] just assumed [Matthew] probably wasn’t allowed to
      have a firearm.

N.T., 3/6/2014, at 77.

      With respect to this testimony, Appellant contends that the incident

where Matthew shot at police occurred after Appellant transferred the AK-47

to Maurice.   Thus, Appellant argues that he could not have possessed the




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J-A08021-15


state of mind required at the time he sold the firearm to Maurice. Appellant’s

Brief at 35.

      With respect to the incident where Matthew shot at police, Trooper

Norton testified that Appellant told him it occurred two to three years prior

to the July 1, 2011 interview of Appellant by police. N.T., 3/6/2014, at 96.

However, that comment was immediately followed by testimony that

Appellant told police that “at one point [Matthew] had been sent away to a

mental institution…. [and that occurred while they were] in [high] school

because [Matthew] had left school for that purpose.” Id. at 96-97.

      Based upon this testimony, viewed in the light most favorable to the

Commonwealth as the prevailing party, the jury could have believed that

Appellant’s knowledge about Matthew’s mental state, and disqualification

from possessing a firearm, arose while the two were in high school together

between 1999 and 2003.7       Accordingly, Appellant’s argument as to the

timing of Appellant’s knowledge is without merit.

      We now turn to Appellant’s final contention with respect to his state of

mind, which concerns the jury instruction. Appellant’s Brief at 26-28.




7
   Appellant argues that the evidence establishes that the AK-47 was
transferred in 2005. Appellant’s Brief at 46. However, Trooper Norton
testified that Appellant told him that he “had [the AK-47] for maybe two
years.” N.T., 3/6/2014, at 78. Thus, although there was testimony to the
contrary, if the jury believed Trooper Norton’s testimony, Appellant could
have transferred the AK-47 as late as 2006.


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J-A08021-15


         [I]t is an unquestionable maxim of law in this Commonwealth
         that a trial court has broad discretion in phrasing its instructions,
         and may choose its own wording so long as the law is clearly,
         adequately, and accurately presented to the jury for its
         consideration. Only where there is an abuse of discretion or an
         inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(quotation omitted).

         In his proposed points for charge, Appellant suggested that the trial

court instruct the jury that the commonwealth was required to prove

“[Matthew]      had    been   adjudicated    delinquent    by   a   Court   of   this

Commonwealth for burglary, that [Appellant] knew at the time of the

agreement with the other party that the other party was prohibited from

possessing … a firearm because of such adjudication for burglary[.]”

Proposed Points for Charge of Defendant, 9/30/2013, at 4.

         The trial court did not include this language in its jury instructions,

noting that “[t]he elements of the offense doesn’t [sic] specify that

[Appellant] has to know the exact nature of the disqualification, only that he

was disqualified.” N.T. 3/7/2014, at 32. Thus, the trial court instructed the

jury that it must find “that [Appellant] conspired with Maurice Connor … to

facilitate that person prohibited by law from possessing … a firearm….” Id.

at 30.

         Appellant contends that the instruction provided “falls dramatically

short of … due process.” Appellant’s Brief at 28. Our Supreme Court’s recent



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J-A08021-15


decision in Commonwealth v. Knox, 105 A.3d 1194 (Pa. 2014) is

instructive.   The Supreme Court analyzed a defendant’s “accountability for

the illegal possession of a firearm by another, under accomplice-liability

theory.” Id. at 1195.8    In that case, the underlying offense was firearms not

to be carried without a license. The prosecution of Knox was premised on

Knox being an accomplice to his brother’s possessing a firearm when his

brother was not licensed to do so. The Court held that the proper inquiry is

whether Knox, “acting with the intent to promote or facilitate his brother’s

unlicensed carrying of a concealed firearm, solicited his brother to commit

such an offense…”. Id. at 1197.

      In this case, the jury instruction tracks the intent language approved

by our Supreme Court in Knox. Accordingly, the trial court did not abuse its

discretion in the phrasing of the jury instruction; thus, Appellant is not

entitled to relief on this basis.

      We next consider a series of arguments with respect to the timing of

the offense that occurred.          First, Appellant contends that because the

Commonwealth could not fix the date of the transfer of the AK-47 from

Appellant to Maurice “with reasonable certainty,” Appellant’s judgment of



8
  We are cognizant that “[a]ccomplice liability and conspiracy are not one
and the same crime. Conspiracy requires proof of an additional factor which
accomplice liability does not, namely the existence of an agreement.”
Murphy, 795 A.2d at 1038. We addressed the existence of an agreement
supra.


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J-A08021-15


sentence must be vacated pursuant to Commonwealth v. Devlin, 333 A.2d

888 (Pa. 1975). Appellant’s Brief at 38.

      On June 6, 1972, Devlin was charged with sodomizing a twenty-two

year old man, who had the “mental ability of a first or second grade child,”

between       February   1971    and   April    1972.     Devlin   argued    that   the

Commonwealth “had not fixed the date of the crime with sufficient

particularity, and thus the charge was impossible to defend.” Id. at 890.

The Supreme Court agreed and reversed Devlin’s judgment of sentence;

however, it noted that “leeway permissible would vary with the nature of the

crime and the age and condition of the victim, balanced against the rights of

the accused.” Id. at 892. Devlin and its progeny are limited generally to

sexual assault cases where the criminal information charges the accused

with a course of conduct over a period of time. Thus, we conclude that the

principles of Devlin are inapplicable to this case.

      Moreover, Pennsylvania Rule of Criminal Procedure 560 provides that

the information shall contain “the date when the offense is alleged to have

been committed if the precise date is known … provided that if the precise

date is not known or if the offense is a continuing one, an allegation that it

was committed on or about any date within the period fixed by the statute of

limitations    shall   be   sufficient.”   Pa.R.Crim.P.   560(A)(3).        Here,   the

Commonwealth alleged that the transfer occurred between “October 19,




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J-A08021-15


2005 (sic) and June 29, 2011.” Trial Court Memorandum Order, 3/28/2013,

at 8. Accordingly, the criminal information at issue complies with the rule,

and Appellant is not entitled to relief on this basis.

      Appellant further argues that because the Commonwealth cannot fix

an exact date on this transfer, the statute of limitations may have expired

prior to Appellant’s prosecution. Appellant’s Brief at 39-43.9     Appellant

argues that the statute of limitations for criminal conspiracy is two years10

and expired two years from the date Appellant sold the AK-47 to Maurice in

2005. Appellant’s Brief at 46.11          Thus, according to Appellant, the

Commonwealth had to bring these charges prior to 2007. Id. We conclude

that Appellant has misinterpreted the law.

           As a general rule, prosecutions must be commenced within
      two years after the crimes have been committed. There is,
      however, an exception to this rule where conspiracy is the crime.

9
   Certain dates are not in dispute: 1) the date that Appellant originally
purchased the AK-47, October 19, 2004; 2) the date that the AK-47 was
found with Matthew, June 29, 2011; and, 3) the date that the prosecution of
Appellant commenced, October 7, 2011. See 42 Pa.C.S. § 5552(e) (“[A]
prosecution is commenced either when an indictment is found or an
information under section 8931(b) (relating to indictment and information) is
issued, or when a warrant, summons or citation is issued, if such warrant,
summons or citation is executed without unreasonable delay.”).
10
  42 Pa.C.S. § 5552(a) (“Except as otherwise provided in this subchapter, a
prosecution for an offense must be commenced within two years after it is
committed.”).
11
   As set forth supra, it is unclear whether Appellant sold the AK-47 to
Maurice in 2005 or 2006. In light of our analysis infra, the exact date does
not matter.


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      For purposes of the statute of limitation, the crime of conspiracy
      is a continuing offense. And any conspiracy that is renewed by
      repetitions may be prosecuted at any time within two years after
      the commission of the last offense.

Commonwealth v. Volk, 444 A.2d 1182, 1187 (Pa. Super. 1982) (citations

omitted).

       “Criminal conspiracy … does not terminate until the conspiracy ends,

at which point the time starts to run.” Commonwealth v. McSloy, 751

A.2d 666, 669 (Pa. Super. 2000).        Additionally, “[p]ossession is ongoing

conduct, not a temporally limited act. As long as one is in unlawful

possession of a firearm, one is committing an offense.” Commonwealth v.

Gross, 101 A.3d 28, 35 n.5 (Pa. 2014).

      Instantly, Appellant’s conviction was for conspiracy to commit persons

not to possess a firearm; thus, the object of the conspiracy was for Matthew

to possess the firearm.     Accordingly, so long as Matthew possessed the

firearm, the conspiracy was not terminated.       Here, Matthew was found in

possession of the firearm on June 29, 2011, and the prosecution commenced

on October 7, 2011, well within the two-year statute of limitations. Thus,

Appellant is not entitled to relief based upon the statute of limitations.

      Finally, Appellant contends the trial court considered an impermissible

sentencing factor, “evidence from a non-victim as to the harm suffered by a

separate incident.” Appellant’s Brief at 49.    While Appellant suggests that

this issue raises a “substantial question,” his argument focuses on the trial



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court’s decision to permit testimony at sentencing from the family of Kyle

Pagerly and a representative of law enforcement. Id. at 48.

      The Commonwealth argues that Appellant has waived this challenge to

the discretionary aspects of his sentence, because Appellant’s brief does not

include a statement pursuant to Pa.R.A.P. 2119(f). Commonwealth’s Brief at

22-23.   The Commonwealth also suggests that any issues with respect to

sentencing are waived because Appellant did not include a copy of the

sentencing transcript in the certified record. Id. at 24 n.4.

      Prior to sentencing, Appellant filed a petition to limit testimony at the

sentencing hearing. That petition requested that the Commonwealth not be

permitted to introduce testimony with respect to Pagerly’s death. In

considering Appellant’s petition, the trial court acknowledged that evidence

of Pagerly’s death “would have been highly prejudicial to a jury’s analysis of

the elements of the crimes for which [Appellant] was charged.” Trial Court

Opinion, 4/22/2014, at 2.        However, it concluded such testimony, if

presented at sentencing, would not sway the trial court. Thus, it permitted

the Commonwealth to present a maximum of two witnesses to testify for 10

minutes each at sentencing.

           In deciding whether a trial judge considered only
      permissible factors in sentencing a defendant, an appellate court
      must, of necessity, review all of the judge’s comments.
      Moreover, in making this determination it is not necessary that
      an appellate court be convinced that the trial judge in fact relied
      upon an erroneous consideration; it is sufficient to render a



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      sentence invalid if it reasonably appears from the record that the
      trial court relied in whole or in part upon such a factor.

Commonwealth v. Bethea, 379 A.2d 102, 106-07 (Pa. 1977).

      Instantly, this Court is unable to review the issue of whether the trial

court considered impermissible factors at sentencing because Appellant did

not request or ensure inclusion of the transcript from that hearing in the

certified record.

            [W]ell-settled Pennsylvania law makes clear “an appellate
      court is limited to considering only the materials in the certified
      record when resolving an issue.” Commonwealth v. Preston,
      904 A.2d 1, 6 (Pa. Super. 2006) (en banc)[]. Where the
      appellant has not made the transcript of the proceedings at issue
      a part of the certified record, we have said:

                  With regard to missing transcripts, the Rules of
            Appellate Procedure require an appellant to order
            and pay for any transcript necessary to permit
            resolution of the issues raised on appeal. Pa.R.A.P.
            1911(a)....

Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014).

      Thus, regardless of whether this issue challenges the discretionary

aspects of Appellant’s sentence or the decision of the trial court in permitting

this testimony at sentencing, we conclude it has been waived for appellate

review because Appellant has not provided this Court the transcript from the

sentencing hearing.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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     Judge Shogan joined.

     Judge Wecht files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 12/8/2015




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