J-S24038-19

                               2019 PA Super 198

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DANIEL ANDREWS                          :
                                         :
                   Appellant             :   No. 1385 EDA 2017

           Appeal from the Judgment of Sentence April 13, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007797-2014


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                           FILED JUNE 21, 2019

      Appellant Daniel Andrews appeals the judgment of sentence entered by

the Court of Common Pleas of Philadelphia County after a jury convicted

Appellant of several violations of the Uniform Firearms Act (VUFA). Appellant

asserts that the trial court erred in denying several of his pre-trial motions

and abused its discretion by imposing a manifestly excessive sentence. After

careful review, we affirm.

      On June 19, 2014, Michael Nesmith, Henry Crosby, Laticj McKnight, and

Appellant were all present at Nesmith’s home in Philadelphia.       The four

individuals began to smoke “blunt” which contained K-2, a synthetic

marijuana. Thereafter, McKnight went upstairs to get a cigarette and Nesmith

and Crosby began to play video games.

      When Appellant asked Nesmith for a cigarette, Nesmith responded that

he did not have one. Appellant got up, walked to the door, turned around,



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S24038-19



and fired shots at Nesmith and Crosby with a handgun. Despite the fact that

Nesmith had been shot in the right thigh, he was able to go upstairs to tell

McKnight that Appellant had shot him.      McKnight and Nesmith came back

downstairs, and found Crosby lying on the ground with a gunshot wound to

the chest. After Crosby and Nesmith were transported to the hospital, medical

personnel were able to remove the bullet from Crosby’s right rib, but did not

remove the bullet in Nesmith’s thigh as surgery carried a high risk.

      After the shooting, Appellant fled out of the home and attempted to

escape by jumping on the back of a fire truck. When the firemen confronted

Appellant, he became combative. Appellant was arrested after he was found

wandering in the same neighborhood; authorities also discovered Appellant’s

firearm, which Appellant had discarded on the street.        After officers took

Appellant into custody, he confessed to shooting Crosby and Nesmith.

      Appellant was charged with two counts of aggravated assault, persons

not to possess a firearm, carrying a firearm without a license, carrying a

firearm in public in Philadelphia, and possession of an instrument of crime

(PIC). Appellant filed multiple pre-trial motions, including a motion to dismiss

pursuant to Pa.R.Crim.P. 600 as well as suppression motions challenging the

validity of the warrant used to search his home and the voluntariness of his

confession to police. The trial court denied all of these pre-trial motions.

      At Appellant’s trial, over the Commonwealth’s objection, the defense

presented a defense of involuntary intoxication, claiming Appellant was not

aware he smoked a substance containing K2, which had unintended effects.

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On February 8, 2017, a jury acquitted Appellant of aggravated assault, but

convicted him of persons not to possess a firearm, carrying a firearm without

a license, carrying a firearm in public in Philadelphia, and PIC. Appellant filed

a motion for acquittal for the PIC charge, which the lower court granted.

      On April 13, 2017, the trial court sentenced Appellant to five to ten

years’ imprisonment for persons not to possess a firearm, two to five years’

imprisonment for carrying a firearm without a license, and one to five years’

imprisonment for carrying a firearm in public in Philadelphia. As all sentences

were set to run consecutively, Appellant received an aggregate sentence of

eight to twenty years’ imprisonment. Appellant filed a post-sentence motion,

which the lower court denied. Appellant filed a timely notice of appeal.

      On May 1, 2017, the trial court ordered Appellant to file a Concise

Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)

within twenty-one days of its order, stating “any issue not properly included

in the Statement timely filed and served … shall be deemed waived.” Order,

5/1/17, at 1. Appellant did not file his 1925(b) statement until June 6, 2017.

      Appellant raises the following issues for our review:

      A. The trial court committed error when it denied the Appellant’s
         pre-trial motions which included: motion to dismiss pursuant
         to Rule 600, motion to dismiss the search warrant, and motion
         to suppress the Appellant’s statement.

      B. The sentence received by the appellant was so extreme as to
         be an abuse of discretion and warrants a re-sentencing
         hearing.

Appellant’s Brief, at 6.


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J-S24038-19



      As an initial matter, we note that Appellant's concise statement of

matters complained of on appeal was untimely filed. However, the record in

this case contains no indication that the trial court served Appellant with its

order requiring a Rule 1925(b) statement. Our Court has stated that “[i]f the

[trial court] docket does not show that notice of the entry of a Rule 1925(b)

order was provided to an appellant, then we will not conclude that the

appellant’s issues have been waived for failure to file a Rule 1925(b)

statement.” In re L.M., 923 A.2d 505, 510 (Pa.Super. 2007). The fact that

the appellant actually received notice of the Rule 1925(b) order is irrelevant

if “the docket does not reflect that notice was sent.” Id. In this case, the

docket does not show the court clerk mailed notice of the Rule 1925(b) order

to Appellant. In addition, the trial court never signed the portion of the order

indicating notice was served on Appellant.   Therefore, we will not find waiver

on that basis.

      Moreover, even if the trial court had properly served its order upon

Appellant, we would not find Appellant’s issues to be waived by counsel’s

untimely filing of the 1925(b) statement. Our rules of appellate procedure

prescribe: “If an appellant in a criminal case was ordered to file a Statement

and failed to do so, such that the appellate court is convinced that counsel has

been per se ineffective, the appellate court shall remand for the filing of a

Statement nunc pro tunc and for the preparation and filing of an opinion by

the judge.” Pa.R.A.P. 1925(c)(3). In Commonwealth v. Burton, 973 A.2d




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428 (Pa.Super. 2009), this Court discussed the ramifications of counsel’s

failure to file a timely 1925(b) statement:

      The complete failure to file the 1925 concise statement is per se
      ineffectiveness because it is without reasonable basis designed to
      effectuate the client's interest and waives all issues on appeal.
      Likewise, the untimely filing is per se ineffectiveness because it is
      without reasonable basis designed to effectuate the client's
      interest and waives all issues on appeal. Thus[,] untimely filing
      of the 1925 concise statement is the equivalent of a complete
      failure to file. Both are per se ineffectiveness of counsel from
      which appellants are entitled to the same prompt relief.

      The view that Rule 1925(c)(3) does not apply to untimely 1925
      concise statements would produce paradoxical results. The
      attorney who abandons his client by failing to file a 1925 concise
      statement would do less of a disservice to the client than the
      attorney who files a 1925 concise statement beyond the deadline
      for filing.

Id. at 432–33. Herein, the trial court did not comment on the untimely filing

of Appellant's Rule 1925(b) statement and, in fact, it addressed all of the

issues raised therein. Therefore, a remand for the preparation of a trial court

opinion is not necessary.

      Appellant first challenges the trial court’s denial of his motion to dismiss

under Rule 600. We are guided by the following standard of review:

      [i]n evaluating Rule 600 issues, our standard of review of a trial
      court's decision is whether the trial court abused its discretion.
      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill will,
      as shown by the evidence or the record, discretion is abused.



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     The proper scope of review is limited to the evidence on the record
     of the Rule 600 evidentiary hearing, and the findings of the trial
     court. An appellate court must view the facts in the light most
     favorable to the prevailing party.

     Additionally, when considering the trial court's ruling, this Court is
     not permitted to ignore the dual purpose behind Rule 600. Rule
     600 serves two equally important functions: (1) the protection of
     the accused's speedy trial rights, and (2) the protection of society.
     In determining whether an accused's right to a speedy trial has
     been violated, consideration must be given to society's right to
     effective prosecution of criminal cases, both to restrain those
     guilty of crime and to deter those contemplating it. However, the
     administrative mandate of Rule 600 was not designed to insulate
     the criminally accused from good faith prosecution delayed
     through no fault of the Commonwealth.

     So long as there has been no misconduct on the part of the
     Commonwealth in an effort to evade the fundamental speedy trial
     rights of an accused, Rule 600 must be construed in a manner
     consistent with society's right to punish and deter crime. In
     considering these matters..., courts must carefully factor into the
     ultimate equation not only the prerogatives of the individual
     accused, but the collective right of the community to vigorous law
     enforcement as well.

Commonwealth v. Leaner, 202 A.3d 749, 765–66 (Pa.Super. 2019)

(citation and brackets omitted).

     Our Supreme Court has summarized Rule 600’s requirements:

     By the terms of Rule 600, the Commonwealth must bring a
     defendant to trial within 365 days from the date upon which a
     written criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
     However, the Rule 600 run date may be adjusted pursuant to the
     computational directives set forth in Subsection (C) of the Rule.
     For purposes of the Rule 600 computation, “periods of delay at
     any stage of the proceedings caused by the Commonwealth when
     the Commonwealth has failed to exercise due diligence shall be
     included in the computation of the time within which trial must
     commence.” Id. 600(C)(1). “Any other periods of delay,”
     including those caused by the defendant, “shall be excluded from
     the computation.” Id. When considering a Rule 600 motion, the

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J-S24038-19


     court must identify each period of delay and attribute it to the
     responsible party, then adjust the 365-day tally to arrive at the
     latest date upon which the Commonwealth may try the defendant.
     Absent a demonstration of due diligence, establishing that the
     Commonwealth has done “everything reasonable within its power
     to guarantee that [the] trial begins on time,” Commonwealth v.
     Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998), the Commonwealth's
     failure to bring the defendant to trial before the expiration of the
     Rule 600 time period constitutes grounds for dismissal of the
     charges with prejudice. See Pa.R.Crim.P. 600(D)(1).

Commonwealth v. Barbour, ___Pa.___, 189 A.3d 944, 947 (2018).

     The comment to Rule 600 provides the following with respect to the

computation of time in which a defendant’s trial must be commenced:

     For purposes of determining the time within which trial must be
     commenced pursuant to paragraph (A), paragraph (C)(1) makes
     it clear that any delay in the commencement of trial that is not
     attributable to the Commonwealth when the Commonwealth has
     exercised due diligence must be excluded from the computation
     of time. Thus, the inquiry for a judge in determining whether there
     is a violation of the time periods in paragraph (A) is whether the
     delay is caused solely by the Commonwealth when the
     Commonwealth has failed to exercise due diligence. If the delay
     occurred as the result of circumstances beyond the
     Commonwealth's control and despite its due diligence, the time is
     excluded. In determining whether the Commonwealth has
     exercised due diligence, the courts have explained that due
     diligence is fact-specific, to be determined case-by-case; it does
     not require perfect vigilance and punctilious care, but merely a
     showing the Commonwealth has put forth a reasonable effort.

     Delay in the time for trial that is attributable to the judiciary may
     be excluded from the computation of time. However, when the
     delay attributable to the court is so egregious that a constitutional
     right has been impaired, the court cannot be excused for
     postponing the defendant's trial and the delay will not be
     excluded.

Pa.R.Crim.P. 600, cmt. (citations, quotation marks and brackets omitted).




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J-S24038-19



       Appellant argues that the trial court erred in determining that the 285-

day period between May 15, 2015 and February 24, 2016 was excludable

delay.1 Instead, Appellant asserts that the delay period should have been

attributed to Commonwealth as the defense requested a continuance for the

Commonwealth to provide additional discovery, which it had failed to provide.

       Our Supreme Court has held:

       the mere filing of a pretrial motion by a defendant does not
       automatically render him unavailable. Rather, a defendant is only
       unavailable for trial if a delay in the commencement of trial is
       caused by the filing of the pretrial motion. If a delay is created,
       in order to establish that the delay is excludable, the
       Commonwealth must demonstrate, by a preponderance of the
       evidence, that it exercised due diligence in opposing or responding
       to the pretrial motion.

Commonwealth v. Hill, 558 Pa. 238, 254–55, 736 A.2d 578, 587 (1999)

(citations and footnote omitted).2

       In a similar case, Commonwealth v. Wallace, 804 A.2d 675, 680

(Pa.Super. 2002), the appellant challenged the trial court’s decision to find

excludable a period of delay that occurred after the trial court granted a


____________________________________________


1 As Appellant does not argue that any other time periods were improperly
ruled as excludable delay, we will limit our discussion to the specific time
period that Appellant finds objectionable.

2The Supreme Court clarified that if a trial court “defers the consideration of
a pretrial motion until trial, the time during which the pretrial motion is
pending is not excludable from the [] calculation.” Hill, 558 Pa. at 254–55,
n.7, 736 A.2d at 587, n.7.




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J-S24038-19



defense request for additional discovery.3 This Court agreed that the eighty-

four-day period was excludable delay as Appellant’s motion placed an

obligation on the prosecution that required the delay of the trial’s

commencement. This Court found that the prosecution had been duly diligent

in making reasonable efforts to accommodate the defense’s request for

discovery; this Court noted that the prosecution had only been accused of

failing to anticipate discovery, which the defense did not specifically request.

Moreover, the trial court noted that no matter how diligent the Commonwealth

was in providing the discovery to the defense, it could not have accelerated

the next court date, which was set at the next court listing.

       Moreover, our courts have recognized that while time attributable to the

normal progression of a case is not “delay” pursuant to Rule 600, periods of

judicial delay may be excluded from Rule 600 calculations. Commonwealth

v. Mills, 640 Pa. 118, 122, 162 A.3d 323, 325 (2017). Our Supreme Court

has indicated that courts of original jurisdiction have discretion “to

differentiate between time necessary to ordinary trial preparation and judicial

delay arising out of the court's own scheduling concerns. Accordingly, where

a trial-ready prosecutor must wait several months due to a court calendar,

____________________________________________


3 In Hill and Wallace, the appellants raised speedy trial claims under the
former Rule 1100. On April 1, 2001, Rule 1100 was amended and renumbered
as Rule 600. “However, because much of the rule's substance remained
consistent throughout the amendment, this Court has continued to apply our
precedents interpreting former Rule 1100 to the analogous provisions of Rule
600, sometimes employing Rule 600 nomenclature to facilitate discussion of
Rule 1100 precedents.” Barbour, ___Pa.___, 189 A.3d at 946.

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J-S24038-19



the time should be treated as ‘delay’ for which the Commonwealth is not

accountable.” Id. See also Commonwealth v. Holt, 175 A.3d 1014, 1022

(Pa.Super. 2017) (finding an eleven-month delay to be excusable as conflicts

with counsel and changes in judicial assignment caused to the court to

reschedule the appellant’s trial for the earliest possible date and the delay

occurred despite the prosecution’s due diligence); Commonwealth v.

Preston, 904 A.2d 1, 14 (Pa.Super. 2006) (en banc) (finding judicial delay

was not attributable to the prosecution where “the Commonwealth was

prepared to commence trial prior to the expiration of the mandatory period

but the court was unavailable because of scheduling difficulties and the like”)

(citation omitted).

      In this case, as Appellant was arrested on June 20, 2014, Appellant’s

mechanical run date was June 20, 2015. The record reveals that before the

defense requested the continuance at issue, discovery was complete and

Appellant’s jury trial had been scheduled for May 18, 2015.       However, it

appears from the record that the defense requested additional discovery on

May 15, 2015, which required the postponement of the trial’s commencement.

The only evidence of this request for a continuance is the docket entry on May

15, 2015, which states, “Defense request for continuance; additional

discovery requested.     Jury trial date relisted 2/29/16 … Time is ruled

excludable. Earliest possible date is given.”

      Appellant did not file a Rule 600 motion until February 26, 2016. At the

Rule 600 hearing held on February 6, 2017, counsel asked the trial court to

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J-S24038-19



reverse its decision to find excludable delay occurred from May 15, 2015 to

February 29, 2016. Counsel asserted that he was not present during the May

15, 2015 court date, but “believed that the continuance was given because

[prior counsel (the Defender Association of Philadelphia)] requested discovery

(DNA, gunshot residue test results, etc.) which should have been provided by

[the] Commonwealth under the Rules of Criminal Procedure.”            Rule 600

motion, 2/26/16, at 2. Counsel admitted that “[prior] counsel was wrong not

to object when the time was held to be excludable.” Id.4

       After reviewing the record, we agree with the trial court’s decision to

find the disputed delay to be excludable as Appellant’s motion placed an

obligation on the prosecution that required the delay of the trial’s

commencement to obtain discovery, which the defense had not requested

until this point. The record does not contain any specific information as to the

particular evidence that the defense sought to obtain.

       Moreover, the trial court has indicated that the court’s congested docket

caused the delay, rather than the Commonwealth’s lack of due diligence. The

record confirms this point as the trial court granted the defense’s continuance

request and rescheduled trial for the earliest possible date, although the trial


____________________________________________


4 This Court has found that a defendant does not need to make an objection
to preserve his speedy trial rights when his trial is scheduled beyond the run
date “so long as he does not indicate that he approves of or accepts the delay.”
Commonwealth v. Wallace, 804 A.2d 675, 678 (Pa.Super. 2002).




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J-S24038-19



was later continued for other reasons that the defense does not attribute to

the Commonwealth. Thus, no matter how diligent the Commonwealth was in

providing the allegedly missing discovery to the defense, it could not have

brought Appellant to trial any faster as the next hearing was set for the earliest

possible date.5 As a result, Appellant’s Rule 600 motion was properly denied.

       Second, Appellant argues that the trial court erred in denying his

suppression motion with respect to the validity of the search warrant that

police obtained to investigate Appellant’s home.

       Our standard of review in addressing a challenge to the denial of
       a suppression motion is limited to determining whether the
       suppression court's factual findings are supported by the record
       and whether the legal conclusions drawn from those facts are
       correct.    Because the Commonwealth prevailed before the
       suppression court, we may consider only the evidence of the
       Commonwealth and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record as
       a whole. Where the suppression court's factual findings are
       supported by the record, we are bound by these findings and may
       reverse only if the court's legal conclusions are erroneous. Where,
       as here, the appeal of the determination of the suppression court
       turns on allegations of legal error, the suppression court's legal
       conclusions are not binding on an appellate court, whose duty it
       is to determine if the suppression court properly applied the law
       to the facts. Thus, the conclusions of law of the courts below are
       subject to our plenary review.

____________________________________________


5 Appellant cites Commonwealth v. Preston, 904 A.2d 1, 12 (Pa.Super.
2006), in arguing that Commonwealth cannot claim that delay in providing
discovery was excusable if the delay is “due to either intentional or negligent
acts, or merely stems from the prosecutor's inaction.” As the record in this
case contains no details as to what discovery the defense was seeking in
requesting the continuance on May 15, 2015, Appellant has no basis to assert
that the Commonwealth did not exert due diligence in providing the defense
with this unknown discovery request.

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Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa.Super. 2019) (citations

and quotation marks omitted).       In addition, “our scope of review from a

suppression ruling is limited to the evidentiary record that was created at the

suppression hearing.” Commonwealth v. Rapak, 138 A.3d 666, 670

(Pa.Super. 2016) (citing In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013)).

      Specifically, Appellant claims the search warrant was invalid because

the affidavit of probable cause contained a material misstatement of fact. We

are guided by the following principles:

      In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d
      667 (1978), the Supreme Court held a defendant may attack the
      issuance of a warrant if based on untruthful information. Id. at
      171, 98 S.Ct. 2674. In requiring a truthful basis for the issuance
      of a warrant, the Court explained

         [t]his does not mean “truthful” in the sense that every fact
         recited in the warrant affidavit is necessarily correct, for
         probable cause may be founded upon hearsay and upon
         information received from informants, as well as upon
         information within the affiant's own knowledge that
         sometimes must be garnered hastily.

      Id. at 165, 98 S.Ct. 2674. To succeed in attacking a warrant, a
      defendant must come forward with “allegations of deliberate
      falsehood or of reckless disregard for the truth, and those
      allegations must be accompanied by an offer of proof.” Id. at
      171, 98 S.Ct. 2674.

Commonwealth v. Gomolekoff, 910 A.2d 710, 715 (Pa.Super. 2006)

(quoting United States v. Harvey, 2 F.3d 1318, 1323 (3rd Cir. 1993))

(emphasis in original and brackets omitted). In Gomolekoff, this Court found

that the trial court did not err in rejecting the appellant’s claim that the search

warrant was rendered invalid by inaccuracies in the affidavit of probable


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cause, when the appellant did not offer any evidence to suggest that the

detective who submitted the warrant application “made deliberately false

statements, or statements, or made statements with a reckless disregard for

the truth.” Gomolekoff, 910 A.2d at 715.

      Similarly, in this case, Appellant argues that the search warrant should

have been invalidated because it incorrectly alleged that Laticj McKnight saw

Appellant shoot Nesmith and Crosby.       In reality, McKnight was upstairs in

Nesmith’s home when the shooting occurred downstairs; Nesmith ran upstairs

and told McKnight that Appellant had fired shots at Crosby and Nesmith.

      However, Appellant never alleged that the police made deliberately false

statements or made statements with a reckless disregard for the truth in

asserting that McKnight had witnessed the shooting.               As noted in

Gomolekoff, Appellant was required to make an offer of proof that the

affidavit of probable cause contained a false statement that was deliberately

or recklessly made. As a result, the trial court correctly denied Appellant’s

suppression claim on this basis.

      Third, Appellant argued that his statement to police admitting that he

shot Nesmith and Crosby should have been suppressed as he alleges that his

confession was coerced.      Specifically, Appellant asks this Court to find his

confession was involuntary because he had been in custody for approximately

nine hours, was deprived of food and drink, and had been under the influence

of a controlled substance.




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      Our Supreme Court has set forth the following principles to review

challenges to the voluntariness of a confession:

             The test for determining the voluntariness, and thus the
      admissibility, of an accused's statement is the totality of the
      circumstances surrounding the statement. The mere fact that
      there is some passage of time between when an accused is
      arrested and when he or she gives an inculpatory
      statement does not constitute grounds for suppression of
      the statement. Numerous factors should be considered under a
      totality of the circumstances test to determine whether a
      statement was freely and voluntarily made: the means and
      duration of the interrogation, including whether questioning was
      repeated, prolonged, or accompanied by physical abuse or threats
      thereof; the length of the accused's detention prior to the
      confession; whether the accused was advised of his or her
      constitutional rights; the attitude exhibited by the police during
      the interrogation; the accused's physical and psychological state,
      including whether he or she was injured, ill, drugged, or
      intoxicated; the conditions attendant to the detention, including
      whether the accused was deprived of food, drink, sleep, or medical
      attention; the age, education, and intelligence of the accused; the
      experience of the accused with law enforcement and the criminal
      justice system; and any other factors which might serve to drain
      one's powers of resistance to suggestion and coercion.

Commonwealth v. Martin, 627 Pa. 623, 654–55, 101 A.3d 706, 724–25

(2014) (internal citations omitted) (emphasis added).

      In the instant case, Appellant was arrested at approximately 9:00 a.m.

However, as Appellant’s behavior was erratic, his speech was incoherent, and

he appeared to be under the influence of a controlled substance, the police

did not take Appellant’s statement while he was in this condition and instead

held him in custody. N.T. 2/6/17, at 43. Meanwhile, the detective assigned

to Appellant’s case, Detective Orlando Ortiz, went to the hospital to speak the

two victims in the shooting, and other officers processed the crime scene.

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      When Detective Ortiz returned to the station at 6:00 p.m., he offered

Appellant food and drink and allowed him to go to the bathroom. Detective

Ortiz noted that Appellant appeared to be in a “normal” condition and did not

feel that Appellant was high or intoxicated at that point. Id. at 44. Detective

Ortiz confirmed that in his eighteen years of experience as a police officer, he

had come in contact with individuals under the influence of alcohol and drugs.

Thereafter, Detective Ortiz provided Appellant with written Miranda warnings

which he also read to Appellant.     After Appellant signed this document to

acknowledge he understood he was waiving his Miranda rights, he confessed

to shooting Nesmith and Crosby.

      In considering the totality of the circumstances surrounding Appellant’s

statement, we find no support for Appellant’s claim that his confession was

involuntary due to his alleged intoxication and the length of his time in police

custody.   The trial court found credible Detective Ortiz’s testimony that

Appellant was coherent, able to hold a conversation, and did not exhibit any

signs of intoxication when he gave his confession. To the extent that Appellant

raises other considerations (such as his level of intelligence and experience

with the police), we note that the trial court did not consider such factors as

Appellant did not raise these concerns at the suppression hearing. As noted

above, we may only consider the evidentiary record created at the suppression

hearing. Rapak, supra. Accordingly, we conclude that the trial court did not

err in denying Appellant’s suppression motion on this basis as well.




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      Lastly, Appellant claims the trial court abused its discretion in imposing

a manifestly excessive sentence.      The following principles apply to our

consideration of this argument:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct a four-
      part analysis to determine: (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, 42
      Pa.C.S.A. § 9781(b).

      When appealing the discretionary aspects of a sentence, an
      appellant must invoke the appellate court’s jurisdiction by
      including in his brief a separate concise statement demonstrating
      that there is a substantial question as to the appropriateness of
      the sentence under the Sentencing Code. The requirement that an
      appellant separately set forth the reasons relied upon for
      allowance of appeal furthers the purpose evident in the
      Sentencing Code as a whole of limiting any challenges to the trial
      court’s evaluation of the multitude of factors impinging on the
      sentencing decision to exceptional cases.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)

(quotation marks, some citations, and emphasis omitted).

      In this case, Appellant has: (1) timely filed a notice of appeal, (2)

preserved the instant issue in a post-sentence motion, and (3) included a Rule

2119(f) statement in his brief. We therefore turn to the next requirement:

whether the question raised by Appellant is a substantial question meriting

our discretionary review.




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       The determination of what constitutes a substantial question must
       be evaluated on a case-by-case basis. A substantial question
       exists only when the appellant advances a colorable argument
       that the sentencing judge’s actions were either: (1) inconsistent
       with a specific provision of the Sentencing Code; or (2) contrary
       to the fundamental norms which underlie the sentencing process.

Id. (quotation marks and some citations omitted).

       The only sentencing challenge that Appellant preserved before the trial

court was his claim that there were “numerous other sentencing alternatives

that could have been appropriately imposed in this case … [more specifically,]

a county sentence.” Motion for Reconsideration of Sentence, 4/19/18, at 1. 6

This Court has held that “a generic claim that a sentence is excessive does not

raise a substantial question for our review.” Commonwealth v. Christine,

78 A.3d 1, 10 (Pa.Super. 2013) (en banc), aff'd, 633 Pa. 389, 125 A.3d 394

(2015) (quoting Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.Super.

2013) (stating, “a bald assertion that a sentence is excessive does not by itself

raise a substantial question justifying this Court's review of the merits of the

underlying claim”)).

       However, even assuming arguendo Appellant had raised a substantial

question, his challenge to the discretionary aspects of his sentence is clearly

without merit. As Appellant’s prior record score rendered him a repeat felony

____________________________________________


6 Appellant did attempt to raise other challenges to the discretionary aspects
of his sentence for the first time in his appellate brief. However, it is well-
established that “[o]bjections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing or in a motion
to modify the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa.Super. 2013).


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offender (RFEL) and his conviction for persons not to possess a firearm carried

an offense gravity score (OGS) of 10, the guidelines provided a standard range

of 72-84 months with an aggravated/mitigated range of 12 months.           For

Appellant’s conviction for carrying a firearm without a license that carried an

OGS of 9, the guidelines provided for a standard range of 60-72 months with

an aggravated/mitigated range of 12 months. For Appellant’s conviction for

carrying a firearm in public in Philadelphia that carried an OGS of 5, the

guidelines provided for a standard range of 24-36 months with an

aggravated/mitigated range of 3 months. See 204 Pa.Code §§ 303.4, 303.15,

§ 303.16(a).

      As noted above, the trial court sentenced Appellant to five to ten years’

imprisonment for persons not to possess a firearm, two to five years’

imprisonment for carrying a firearm without a license, and one to five years’

imprisonment for carrying a firearm in public in Philadelphia. Thus, the trial

court imposed individual sentences that fell in the mitigated range of the

sentencing guidelines or were completely below the recommended guideline

ranges.   As such, we cannot find the trial court abused its discretion in

imposing these sentences.

      For all the foregoing reasons, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2019




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