J-S53027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    EDWARD M. MITCHELL

                             Appellant                No. 3176 EDA 2018


          Appeal from the Judgment of Sentence September 14, 2018
              In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0004169-2017

BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 24, 2019

       Appellant, Edward M. Mitchell, appeals from his aggregate judgment of

sentence of 77-384 months’ imprisonment imposed for six convictions of theft

by deception, six counts of restricted activities, twelve counts of bribery, six

counts of conspiracy to commit theft by unlawful taking, six counts of

conspiracy to commit receiving stolen property and six counts of conspiracy

to commit theft by deception.1 Appellant argues, inter alia, that the trial court

erred by denying his motions for mistrial based on witnesses’ remarks during

trial. We affirm.

       The trial court summarized the evidence as follows:

       Upland Borough is a community located in Delaware County,
       Pennsylvania. The Borough is roughly six-tenths of a square mile
____________________________________________


1 18 Pa.C.S.A. § 3922, 65 Pa.C.S.A. § 1103, and 18 Pa.C.S.A. §§ 4701 and
903, respectively. The jury found Appellant not guilty of two counts of
intercepting communications.
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     and is home to approximately 3,200 residents. From 2009
     through 2015, Appellant was the President of Upland Borough
     Council.    Michael Ciach was the Mayor of Upland Borough.
     Christine Peterson was the Police Administrative Secretary and
     also Vice President of Council. Shirley Purcival was the Borough
     Manager. Moria Crawford was a member of Borough Council.
     Nelson Ocasio was a patrolman for the Borough and eventually
     Chief of Police. Thomas Willard was the owner of Logan Solutions.
     Much like any town, personalities clashed, and perceived alliances
     ensued. The 1,345 page trial record demonstrated that Upland
     Borough was not exempt from the small town politics; however,
     in an effort to streamline the voluminous record, the following
     testimony relates directly to the charges Appellant faced and the
     issues raised on appeal.

     Ciach is currently employed by Upland Borough as the Borough
     Manager and has been so employed since May 2017. As Borough
     Manager, his duties include running the Borough’s day-to-day
     operations, managing accounts payable and accounts receivable,
     and managing the municipal facilities, such as: McQueen Hall, the
     borough hall building, which houses the borough offices and
     Council chambers (sometimes referred to as the meeting hall), the
     Pavilion located in the park at 7th and Church Street, used for
     various community events, and the Reese Center, located at 500
     West 24th Street, which is currently used as a maintenance
     garage but is targeted to be used eventually as a recreation
     facility. In the same parking lot, but not connected to McQueen
     Hall, is the Borough’s Police Department building.

     The exteriors of the Borough buildings are protected by sixteen
     surveillance cameras. The surveillance provided by these cameras
     focuses on the outside of the building as well as the foyer of
     Borough Hall; they do not provide footage of anything occurring
     inside the Borough Hall offices or Council chambers. There is no
     sound recording on any of the sixteen cameras.

     Prior to his current position as Borough Manager, and relevant to
     the timeframe of this case, Ciach was the Mayor of Upland
     Borough from 2005 to 2017. During his time as Mayor, Ciach was
     essentially the administrative head of the Police Department.

     On May 3, 2016, while in his capacity as Mayor, Ciach needed to
     review some of the building’s security camera footage, so he
     called Willard, the owner of Logan Technology, who installed the

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     system, and asked him to come over to Borough Hall and show
     him how to access the footage. Ciach also wanted Willard to
     explain how the system worked so that Ciach did not have to pay
     Willard to come down to the Hall every time he needed to view
     footage from the system. Between 2009 and 2015, Willard’s
     company, including its employees, Michael Kinsler and Steven
     Bradley, performed the vast majority, if not all, of Upland
     Borough’s security work.

     Willard came to the Borough Hall building and was showing Ciach
     how to operate the DVR system attached to the cameras when
     Ciach noticed a second, smaller DVR set that was completely
     unbeknownst to Ciach. Ciach asked Willard what that DVR set
     was attached to, and Willard told him that the small DVR set was
     attached to the covert camera system. Surprised at the response,
     Ciach asked Willard to explain the covert cameras; Willard pointed
     to what appeared to Ciach to be motion sensors on the wall, which
     were hidden cameras. When Willard pulled up the monitor
     associated with the covert system, Ciach found himself staring at
     footage of inside Council chambers as well as right behind the
     secretary’s desk in the Borough Office, both places that cameras
     were never approved to be monitoring.

     Ciach asked Willard who authorized him to put in the covert
     system, and Willard responded that Appellant told him to install
     the system. Willard mentioned that the system footage could also
     be sent to a camera or to a telephone, and that Appellant was
     using that remote access feature to receive the footage on his
     phone.

     As Ciach further examined the system, he noticed that the wiring
     seemed to indicate that there was also some type of audio
     associated with the footage on the covert system. Ciach later
     learned that he was correct in his suspicion, that there was audio
     associated with separate microphones placed in the Council room
     as well as in the secretary’s office in Borough Hall. Ciach had no
     idea that the sensors in the Council room were actually hidden
     cameras and certainly did not know that they were recording the
     audio inside the room. After Willard left, Ciach began examining
     the footage of the covert system, finding about thirty days’ worth
     of footage, while the known DVR only had eight days’ worth of
     footage, which immediately was suspicious to Ciach, because he
     knew this DVR was capable of holding thirty days’ worth of
     footage.

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     Ciach contacted his solicitor about the covert cameras that he had
     discovered and was advised to call Detective Lythgoe of Delaware
     County CID. Ciach called Detective Lythgoe and described the
     covert system to which he had just become aware. Detective
     Lythgoe came down to Borough Hall and met with Ciach, who
     showed him the covert system. The two examined the files on the
     system which had both audio and video.

     As Borough Manager, Ciach attended every Council meeting; at
     no time did Council ever discuss, let alone approve, the installation
     of a covert camera system in the meeting hall. While viewing the
     footage, Ciach came across a recording from February 22, 2016,
     that included video and audio footage of a meeting located in
     Council chambers between himself, Detective Kazlow and
     Sergeant Patterson about a separate investigation they were
     conducting into the false arrest of Christine Peterson. At the time
     of the meeting, neither Ciach nor the detectives involved had any
     idea that they were being recorded.

     After the discovery of the covert system, Ciach and the other
     members of Council took independent action to investigate.
     Randy Martin, a surveillance specialist, was hired to come in and
     sweep the Borough for listening devices and other possible
     cameras. Martin and his team located microphones at the base of
     the front of Council’s desk; the microphones were placed into two
     small holes which appeared to be drilled into the desk. Upon
     locating the microphones, Ciach again called Detective Lythgoe,
     who removed the microphones.

     As a result of the covert system being located and the
     investigation into Peterson’s arrest, CID conducted investigations
     in Upland Borough on a regular basis. On March 25, 2016, Ciach
     was asked to provide Detective Lythgoe with 1099 forms for Logan
     Solutions; Ciach provided Detective Lythgoe with 1099 forms from
     2009 through 2015. The 1099 forms reflected the following
     income for Logan Solutions from Upland Borough:

     1099   Form   2015:   $   47,953.70
     1099   Form   2014:   $   82,764.95
     1099   Form   2013:   $   299,163.00
     1099   Form   2012:   $   142,169.50
     1099   Form   2011:   $   93,254.49
     1099   Form   2010:   $   158,432.00

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     1099 Form 2009: $ 90,184.00

     In relation to the Borough’s budget, Logan Solutions was paid a
     disproportionate amount.      In 2013 alone, Logan Solutions
     received ten percent of the Borough’s entire budget. No other
     vendor who ever dealt with the Borough was ever paid that much.
     Ciach also provided Detective Lythgoe with the invoices from
     Logan Solutions from the years of 2009-2015 and copies of checks
     made out to Logan Solutions from the Borough. Despite all of the
     money paid to Logan Solutions, Ciach never recalled a proposal or
     an invoice voted on for Logan Solutions at any Council meeting;
     nor did Ciach recall Logan Solutions going through the bidding
     process during the years of 2009 through 2015.

     Councilwoman Moria Crawford did not recall Logan Technology
     ever going through the bidding process, either. In addition,
     Crawford did not recall seeing any of the proposals for the work
     contracted to Logan Technology. In addition, Crawford had no
     idea that there were cameras or microphones in the Council hall
     or chambers.

     Shirley Purcival was employed with the Borough of Upland for
     thirty-two years. Purcival started out as the police secretary,
     moved to recording secretary and eventually Borough Manager.
     Purcival retired in 2015 due to physical stress due to her
     relationship with Appellant. Specifically, Purcival felt that as
     Borough President, Appellant was unduly creating so much stress
     on her that she was not sleeping and developed acute eczema.

     During her time with the Borough, Appellant introduced Purcival
     to Willard; Appellant told Purcival that he personally vouched for
     Willard. Part of Purcival’s duties for Upland Borough required her
     to be familiar with the bidding process for potential vendors.
     When Appellant became President in 2008, Council was required
     to bid out jobs over $10,500. That process included drawing up
     specifications for the job, placing an ad in a general circulation
     publication that bids would be accepted on a specific date, time
     and place. Council would require sealed bids and bid bond,
     normally ten percent of the bid prices. If a job was going to cost
     between $4,000 and $10,000, Council was required to get three
     quotes, by telephone or writing. During the years of 2009-2015,
     Logan Solutions never participated in either type of bidding
     process for the work performed in the Borough. As Borough
     Manager at the time, these bids would have specifically come to

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     her or the project engineer and Purcival would personally sit in on
     the unsealing of the bids received. During her time, Logan
     Solutions performed security services for Upland Borough,
     including installing burglar alarms, fire alarms, outside security
     cameras, and access control panels on the doors. The work
     completed by Logan was always initiated by Appellant.

     Most alarming to Purcival was the process in which Logan
     Solutions was paid. At the direction of Appellant, Purcival was told
     to pay Logan’s invoices as soon as they were received, which was
     not the common practice for any other vendor doing work. In
     addition, if an invoice was over a specific amount, such as
     $10,000, Purcival was instructed by Appellant to pay the invoice
     off in separate payments, as a solution to Logan bypassing the
     bidding requirements. That was also not common practice for any
     other vendor. Specifically, Purcival recalls a time where she took
     two days off in the end of August. When she returned from those
     two days, Appellant immediately came into her office and was
     annoyed that she had not paid one of Logan’s invoices before
     taking her two days off. Purcival told Appellant he must have
     forgotten that she was off. Appellant was curt, stern, telling her
     to pay the invoice right away. There were even times that Purcival
     was instructed to pay invoices of Logan’s when the work had not
     been completed. Purcival attempted to converse with Appellant
     about her concerns; however, she was always met with animosity,
     and Appellant made it clear on several occasions that she would
     be terminated for noncompliance.

     During Appellant’s reign as President, Nelson Ocasio was Chief of
     Police in Upland Borough. The police station was located in a
     separate building from Borough Hall. Prior to his time as Chief,
     Ocasio was a patrolman with [sic] for the Borough. Ocasio
     became Chief after Chief John Easton retired. Chief Easton retired
     earlier than expected, so Ocasio was relatively young to be in the
     role. Due to his age, Ocasio looked to Appellant and to other
     members of Council for guidance and mentorship. Despite being
     close with Appellant, Ocasio had no idea that covert cameras were
     installed in Council’s meeting hall. During his time as Chief,
     Ocasio had occasion to interact with then administrative assistant,
     Peterson. In June 2015, Ocasio became aware that a set of dash
     cameras that had been ordered for the police cars were missing,
     a project that Logan Solutions had been working on. At the
     direction of Appellant, Ocasio did not investigate the missing
     police dash cameras. Appellant told Ocasio that the cameras were

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     stolen by former employee, Michael Diggins, who was previously
     fired for his drug use. Appellant told Ocasio that he “didn’t want
     to put Diggins through the ringer since he had already been fired.”
     Sometime later, Ocasio became aware that Appellant was lying to
     Ocasio and Willard had never even ordered the cameras.
     Eventually, Ocasio was suspended in February 2016 and fired from
     Upland Borough in October 2016.

     As aforementioned, Peterson is the administrative assistant for
     the police department and the current president of Council.
     During Appellant’s term as president, Peterson was Vice-President
     of Council as well as the secretary for the Police Department.
     Peterson has known Appellant for approximately thirty years.
     Peterson saw Appellant quite frequently and often had lunch with
     him. During her time, Peterson became aware of Willard through
     Appellant. With regard to the missing dash cameras for the police
     cars, Peterson was aware that the project was being handled by
     Logan Solutions although never formally voted on by Council nor
     taken to a proper bidding process. Peterson became aware that
     Logan Solutions was paid twice for the cameras, interestingly
     enough that Logan had been paid the first time for the cameras
     despite the fact that he had never even ordered them. Peterson
     told Appellant that the Borough was not going to pay for a second
     set of cameras. Despite the conversation, Peterson learned that
     Logan was paid a second time at the direction of Appellant. In
     addition, when Peterson found out that Ocasio was told not to
     investigate the missing cameras, she told Ocasio that it was his
     job as Chief of Police to make the report.

     In her capacity as Vice President, Peterson spoke with Appellant
     several times about her concern that too much money was being
     spent, that Logan Solutions was bypassing the bidding rules, and
     was being paid for work that hadn’t even been done; Appellant
     always told Peterson to just do what she was told to do. Appellant
     told Peterson that the bidding was not an issue because he was
     having the checks paid in smaller amounts to keep it under the
     bidding requirements. Eventually, Peterson told Appellant that
     she had growing concerns because she was signing the checks, to
     which Appellant responded: “[H]a ha my name isn’t on anything.”
     Eventually, Peterson began signing checks cut to Logan Solutions
     as “CP as per EM.” In March 2015, a retirement party was held
     for Purcival. Appellant told Peterson all of the time that he wanted
     Purcival gone. At the party, Appellant walked past Peterson and
     said: “[T]hat’s how we do it, kid.”

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     Peterson had no knowledge of the covert camera system or the
     corresponding microphones.

     In January 2016, [Peterson] replaced Appellant as President of
     Borough Council; Appellant was not happy with the situation. In
     February 2016, Peterson found a post-it note on her desk; the
     post-it note had a drawing of eyes and handcuffs and said “sorry”
     with “you” underneath the eyes. Later that same day, Ocasio
     arrested Peterson, an arrest that later was found to be without
     any factual basis or probable cause. Later, emails were uncovered
     between Ocasio and Appellant, discussing the impending arrest of
     Peterson.

     On March 16, 2016, Willard was interviewed by Detective Kelly
     and Detective Lythgoe of CID. Willard was asked about the
     missing cameras. Willard was afraid of getting in trouble, so at
     that time, he lied. In August 2016, Willard confessed the truth
     about the cameras to Detective Deery. Willard also told Detective
     Deery everything that had been going on between him and
     Appellant and their deal to provide Logan Solutions the work in
     Upland in exchange for a “kick back” that typically ranged
     anywhere between ten to fifteen percent. Willard told Detective
     Deery that Appellant instructed him to break down his invoices
     into smaller amounts to get around the bidding process. Willard
     told Detective Deery that the prices of the jobs were often inflated
     so that more money could be allocated from the Borough and
     secured that Appellant would receive the cash for the kick back.
     Detective Deery asked Willard if he would place a call to Appellant
     and if that call could be recorded; Willard agreed and consented
     to the recording. During the conversation, Willard repeatedly told
     Appellant that he was contacted by detectives and that he was
     nervous that their scheme was going to be uncovered; Appellant
     always answered with: “[Y]ou were just paying me back the
     money I loaned you.” Willard told Detective Deery that he had
     never accepted a loan from Appellant. Ultimately, Willard was
     arrested and pled guilty to several counts of theft-related offenses
     in connection with the scheme.

     At trial, each of the above witnesses were instructed to go through
     each and every invoice ever submitted by Logan and confirm or
     deny whether the projects ever went to bid and whether Council
     ever voted on the bills before they were paid. Each witness


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      testified that none of the invoices were ever sent to bid nor were
      the bills ever voted on prior to be paid to Willard.

      At trial, Willard testified that he and Appellant had worked out a
      deal where Willard would cash the checks that he received from
      the Borough and then he would give a percentage of that cash to
      Appellant. That percentage depended on the size of the invoice
      but typically ranged from ten to twenty percent of the value of the
      check. During his testimony, Willard explained in detail every
      project he ever was contracted to complete for the Borough, the
      invoices he submitted, the payments he received, and the
      percentage of each job that he gave back to Appellant.

Trial Court Opinion, 5/17/19, at 2-13 (with minor stylistic revisions).

      In December 2016, Appellant was charged with the offenses listed

above.   On July 11, 2018, one day before trial, Appellant moved for a

continuance, and the trial court denied the motion.       The jury returned its

verdict after a five-day trial.   On September 14, 2018, the court imposed

sentence.   Appellant filed timely post-sentence motions, which the court

denied, and a timely notice of appeal.      Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues in this appeal:

      I. Was the trial court in error for denying [Appellant’s] motion for
      a continuance when long-requested substantial discovery in
      excess of one thousand (1000) pages was not provided until five
      (5) days prior to the start of trial?

      II. Was the trial court in error for denying [Appellant’s] motion for
      a mistrial when the Commonwealth asked and elicited testimony
      from Michael Ciach which amounted to negative character
      testimony concerning [Appellant] in violation of a pretrial ruling
      by the court?

      III. Was the trial court in error for denying [Appellant’s] motion
      for a mistrial when witness Peterson testified about [Appellant]

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      threatening people and bringing up a false arrest that Peterson
      experienced which was so prejudicial that the judge’s instruction
      to strike that answer was not sufficient to cure?

      IV. Was the trial court in error at the time of sentencing when the
      sentencing judge interjected his own personal experience
      involving local government and verbally mentioning that
      experience during the time of [Appellant’s] sentencing?

      V. Was the trial court in error for not permitting all available
      defense witnesses to testify at the time of sentencing?

Appellant’s Brief at 5.

      In his first argument, Appellant contends that the trial court abused its

discretion by refusing to grant his motion requesting a continuance one day

before jury selection.    Trial counsel stated that he and his expert witness

needed additional time to prepare because (1) two days earlier, the prosecutor

provided nearly 1,400 pages of discovery material, and (2) during the previous

week, the prosecutor provided a supplemental expert report. The discovery

material, however, was Appellant’s own bank records. The prosecutor stated

that the Commonwealth produced these records in September 2017. The trial

court denied the continuance because either the Commonwealth previously

provided the records to counsel, or they were readily available to Appellant as

his records.

      The defendant must move for a continuance not later than 48 hours

before the time scheduled for trial. Pa.R.Crim.P. 106(D). The court may grant

a continuance “in the interests of justice.” Pa.R.Crim.P. 106(A). When the

defendant requests a continuance within 48 hours of trial, the court may grant


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the request “only when the opportunity [for making the motion] did not

previously exist, the defendant was not aware of the grounds for the motion,

or the interests of justice require it.” Pa.R.Crim.P. 106(D). The trial court

must state on the record the reasons for granting or denying the continuance.

Id. We review the trial court’s decision to grant or deny continuances for

abuse of discretion. Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa.

2014).

      The trial court acted within its discretion by denying Appellant’s motion

for continuance. The records in question were Appellant’s own bank records.

As the court observed in its opinion, even if the Commonwealth did not

produce these records until shortly before trial, they belonged to Appellant

and were always available to him and his attorneys. Trial Ct. Op. at 15; see

also Commonwealth v. Spotz, 756 A.2d 1139, 1153-54 (Pa. 2000) (where

Commonwealth did not provide transcripts from defendant’s prior trials in

other counties until first day of trial in the case on appeal, no discovery

violation   because   transcripts   were   equally   available   to   defense   and

prosecution). Moreover, Appellant’s two attorneys were capable of reviewing

the material before or during trial. Commonwealth v. Sandusky, 77 A.3d

663, 672 (Pa. Super. 2013) (defendant’s right to effective assistance of

counsel not violated by denial of his request for continuance in order for

counsel to review voluminous supplemental discovery received close to trial,

where defense team was capable of sorting through material while trial was


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ongoing).   In fact, it appears that Appellant’s counsel did review them,

because Appellant’s expert witness, a forensic accountant, testified that in the

course of preparing her opinion, she reviewed five to ten bank statements that

she received from trial counsel.    Tr., 7/19/18, at 66-67, 88.    Accordingly,

Appellant’s first argument fails.

      Next, Appellant asserts that the trial court erred by denying his motion

for mistrial during Ciach’s trial testimony.    The prosecutor asked Ciach,

“[W]hat was [Appellant’s] power as borough council president?” Tr., 7/16/18,

at 147. The witness replied: “[Appellant] controlled everything. Basically, his

word was what you did . . .” Id. Trial counsel objected that the witness was

giving “reputation testimony” and moved to strike.       Id. at 148-49.     The

prosecutor explained that the answer was nonresponsive. Id. Trial counsel

also moved for a mistrial. The trial court sustained the objection, denied the

motion for mistrial, struck the testimony, and instructed the jury to disregard

the answer, stating, “What the power is and what the perception of it are two

different things. Power [is] controlled under the Borough Code[.]” Id. at 150.

      “A mistrial is an extreme remedy that is required only where the

challenged event deprived the accused of a fair and impartial trial.”

Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011). “A trial court

may grant a mistrial only where the incident upon which the motion is based

is of such a nature that its unavoidable effect is to deprive the defendant of a

fair trial, preventing the jury from weighing and rendering a true verdict.”


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Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013). When the

defendant seeks a mistrial based on a witness’s testimony, we consider

whether the prosecutor deliberately elicited the testimony, the prejudice

caused by the testimony, and whether the court gave curative instructions

that were adequate to overcome prejudice. Commonwealth v. Briggs, 12

A.3d 291, 338-39 (Pa. 2011). We review the denial of a mistrial for abuse of

discretion. Travaglia, 28 A.3d at 879.

      Here, the prosecutor did not deliberately elicit Ciach’s testimony that

Appellant controlled everything in the borough or that people did what he told

them to do.    The thrust of the prosecutor’s question to Ciach was what

statutory powers Appellant had as Council president, not what power he

actually exerted or what power people regarded him as having.         Further,

Ciach’s remark was an isolated incident in a trial that covered well over 1,000

pages of testimony, and the Commonwealth did not repeat or exploit it in any

fashion.   Commonwealth v. Murphy, 657 A.2d 927, 934 (Pa. 1995)

(defendant not entitled to mistrial when defense witness remarked during

cross-examination that defendant was on “death row”; prosecutor did not

intentionally elicit remark, but, rather, witness volunteered information and

remark was isolated and not repeated or exploited in any way). Finally, the

trial court gave a curative instruction that the powers in question were what

the Borough Code prescribed, not what people perceived them to be.         We

presume that jurors follow the court’s instructions, Commonwealth v.


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Aikens, 168 A.3d 137, 143 (Pa. 2017), and Appellant gives us no reason to

believe that the jury disregarded the present instruction.            Accordingly,

Appellant’s argument fails.

        Third, Appellant argues that the court erred by failing to grant a mistrial

based on Peterson’s testimony that she was afraid to confront Appellant. The

prosecutor asked: “Were you afraid to go against [Appellant]?” Tr., 7/17/18,

at 156.     Peterson answered: “Absolutely . . . Because if you did then he

threatened people . . . I got falsely arrested or he did some report to where it

probably looked like there was something going on in the police department.

Or he threatened my 73-year-old mother that it would be [a shame] if she

didn’t have anywhere to live[.]” Id. at 156-57. Trial counsel objected, moved

to strike and requested a mistrial.       The trial court denied the motion for

mistrial but instructed the jury to disregard the answer.         Id. at 157-58.

Subsequently, the court emphasized that the jury was required to “accept and

follow” the court’s “rulings and instructions” on matters of law. Tr., 7/20/18,

at 5.

        The court properly denied Appellant’s motion for mistrial. Like Ciach’s

remark discussed above, Peterson’s testimony did not prejudice Appellant,

because it was an isolated incident in a lengthy trial, the court instructed the

jury to disregard Peterson’s answer, and there is no reason to believe that the

jury ignored the court’s instruction. Furthermore, Peterson’s statement was

cumulative of other testimony, admitted without objection, that Appellant was


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feared in Upland Borough. See Tr., 7/16/18, at 343 (Purcival’s testimony that

she processed invoices at Appellant’s direction because she was afraid of

termination if she did not do so); 354 (Purcival: “people were afraid of

retaliation if they went against what [Appellant] wanted”); 355 (Purcival:

“[Appellant] had a saying. He would always say, I’m going to get them and

that means that that person would be terminated, which he did several

employees and he was not pleasant about it. I sat in on one of them”); Tr.,

7/17/18, at 144 (Peterson: “you didn't go against [Appellant]. Everyone was

afraid of him.   If you didn’t do what he said you paid”); see generally

Commonwealth v. Young, 748 A.2d 166, 176 (Pa. 1999) (although

testimony might have been improper, “it was merely cumulative of other

evidence concerning defendant’s [fraudulent] scheme and had no effect on

the jury’s verdict”).

      In his next argument, Appellant contends that the court imposed an

excessive sentence by relying on an impermissible factor, its own experience

in Borough government. We disagree.

      During     sentencing,   Appellant’s    attorney    objected    to   the

Commonwealth’s recommendation of a prison sentence of six to forty-two

years by emphasizing that Appellant was elderly and in poor health, had no

prior convictions and that other criminals did not receive sentences that high:

      At his age, that’s essentially a life sentence. Drug dealers don’t
      get sentences that high. Robbers don’t get sentences that high.
      People who are convicted of aggravated assault don’t get
      sentences that high. There was a woman . . . who was employed

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      by the District Attorney’s Office who stole money from the District
      Attorney’s Office. I believe it was $700,000-some. I think her
      sentence, the maximum sentence that she received was on 27
      months.

N.T., 9/14/18, at 20. The court responded:

      Let me just tell you my perspective’s a little different than most.
      I served eight years as a president of Borough Council. I served
      six years as a township commission, two of those as president.
      So, I have a very good understanding of what the role of an
      elected official in a local municipality. That’s a perspective that I
      see and have dealt with first hand for fourteen years. So, I know
      what’s expected of an elected official, so I’ve taken that into
      consideration just so that you understand.

N.T., 9/14/18, at 22. Counsel stated: “I do, Judge. I’m not suggesting that

you not take that into consideration, but I'm also urging that the Court look

at the mitigating factors in this case too -- my client's age and his poor health

and lack of prior record.” Id. The court answered: “I have looked at all of

the factors, believe me.” Id.

      This argument relates to the discretionary aspect of Appellant’s

sentence. Where an appellant challenges the discretionary aspect of a

sentence, we must determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issue; (3) whether Appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence [pursuant to Rule
      of Appellant Procedure 2119(f), Pa.R.A.P. 2119(f); and (4)
      whether the concise statement raises a substantial question that
      the sentence is [not] appropriate under the [S]entencing [C]ode.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018). Here,

defense counsel arguably waived any objection to the court’s comment by


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stating during sentencing, “I’m not suggesting that you not take [the court’s

knowledge of the role of borough officials] into consideration.” In addition,

defense counsel failed to comply with Pa.R.A.P. 2119(f)’s requirement to

include a concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary        aspects of    sentence in his brief.

Nevertheless, we decline to find waiver. We note that Appellant complied in

substantial part with the four-part test for preserving this issue for appeal. He

filed a timely appeal, objected to the court’s comment in a post-sentence

motion, and raised a substantial question by asserting that the court relied on

an improper sentencing factor. Commonwealth v. Peck, 202 A.3d 739, 746

(Pa. Super. 2019). Furthermore, we find it important that the Commonwealth

did not argue in its appellate brief that Appellant waived this issue. We have

held that “in the absence of any objection from the Commonwealth, we are

empowered to review claims that otherwise fail to comply with Rule 2119(f).”

Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006).                  The

question is even closer here, because Appellant not only ran afoul of Rule

2119(f) but appeared to concede the issue through counsel’s statement at

sentencing. Nevertheless, based on both our preference for resolving issues

on their merits and the Commonwealth’s failure to object, we choose to

address Appellant’s sentencing issue.

      Turning to the substance of Appellant’s argument,

      [s]entencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal

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      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.

      When imposing a sentence, the sentencing court is required to
      consider the sentence ranges set forth in the Sentencing
      Guidelines, but i[s] not bound by the Sentencing Guidelines.... A
      court may depart from the guidelines “if necessary, to fashion a
      sentence which takes into account the protection of the public, the
      rehabilitative needs of the defendant, and the gravity of the
      particular offense as it relates to the impact on the life of the
      victim and the community.” When a court chooses to depart from
      the guidelines however, it must “demonstrate on the record, as a
      proper starting point, his awareness of the sentencing guidelines.”
      Further, the court must “provide a contemporaneous written
      statement of the reason or reasons for the deviation from the
      guidelines.

      When reviewing a sentence outside of the guideline range, the
      essential question is whether the sentence imposed was
      reasonable. An appellate court must vacate and remand a case
      where it finds that “the sentencing court sentenced outside the
      sentencing guidelines and the sentence is unreasonable.” 42
      Pa.C.S.[ ] § 9781(c)(3).

Peck, 202 A.3d at 746.

      When reviewing the record, Section 9781 requires that we consider: (1)

the   nature   and   circumstances   of   the   offense   and   the   history   and

characteristics of the defendant; (2) the opportunity of the sentencing court

to observe the defendant, including any presentence investigation; (3) the

findings upon which the sentence was based; and (4) the guidelines

promulgated by the commission. 42 Pa.C.S.A. § 9781(d). “[A] sentence may

be found to be unreasonable after review of Section 9781(d)’s four statutory


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factors.” Peck, 202 A.3d at 746. A sentence may also be unreasonable if it

was imposed “without express or implicit consideration” of the protection of

the public, the rehabilitative needs of the defendant, and the gravity of the

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

community as required by 42 Pa.C.S.A. § 9721(b). Id. at 746-47. “Where a

[pre-sentence investigation report] exist[s], we [] presume that the [trial

court] was aware of relevant information regarding the defendant's character

and weighed those considerations along with mitigating statutory factors. A

[PSI] constitutes the record and speaks for itself.”       Commonwealth v.

Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014).

      In this case, the court reviewed the parties’ sentencing memoranda and

the pre-sentence investigation report, N.T., 9/14/18, at 41, and it

comprehensively    explained   its   reasons   for   imposing   a   sentence   of

imprisonment, stating:

      At the time this investigation commenced, you served as president
      of Upland Borough Council. As council president, you set the
      agenda and chaired the council meetings. That was the full extent
      of your statutory authority. The remainder is vested in the council
      as a whole or the mayor. As to the police department, it is the
      mayor who oversees it on a day-to-day basis and not you as
      president of council. Upland had a borough manager who was
      responsible for the day-to-day activities of the staff and who
      carried out the policies adopted by the council, and you were not
      the micromanager.        Unfortunately, as the testimony clearly
      demonstrated, you usurped much of this responsibility and
      authority through threats, bullying, and intimidation. As the
      testimony unfolded in this case, I was astounded at your
      arrogance and self-righteousness. You exhibited total disdain for
      the mayor or the other members of council, the Borough
      employees, and the people of Upland. Much like a child predator,

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      you slowly groomed these somewhat naive and trusting persons
      into thinking you had the best interest of the Borough at heart.
      As a result, council, to its detrimental reliance, abdicated much of
      its responsibility and oversight. You [d]evolved into a ruthless
      dictator who took revenge on anyone who had the audacity to
      question your actions . . . You are a thief. You stole from the
      taxpayers under the guise of being Robin Hood, except you were
      the recipient of the alleged benevolence. You are greedy. You
      are pompous. You violated your oath of office, you denigrated the
      position of borough councilman, you defamed the Borough of
      Upland, and you made fools of the electorate. Having read the
      Pre-Sentence Investigation Report, I was floored when I read the
      following and I quote, “[Appellant] denied any wrongdoing. He
      claimed anything that was paid council approved. He denied
      receiving any money or kickbacks from anyone.” This is pure
      baloney. In your statement to the detectives, you admit you got
      money.

Id. at 41-44. The court determined that Appellant did not deserve lenience

due to his age (76) or poor health because he showed no remorse and

undercut the faith of the electorate. Id. at 44. The record fully supports all

of the court’s points.    Its careful and extensive assessment of Appellant’s

conduct demonstrates that its sentencing decision was the product of careful

and sober deliberation.

      We do not think that the trial court considered an improper sentencing

factor by mentioning that it had served as a borough official before taking the

bench and knew what was expected of borough officials. Appellant interprets

this remark to mean that the court arrived at its sentence by subjectively

factoring in its own experience as a borough official. We construe the court’s

comment differently.      The court made this remark in response to defense

counsel’s claim that Appellant deserved a more lenient sentence than robbers


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and other violent offenders. The court merely intended to convey, in so many

words, that it understood the role of borough officials and could ascertain

when crimes committed in public office were as serious as robberies or

assaults. Viewed in this context, the court’s remark was permissible under

Section 9721(b) to reflect its grasp of the impact of Appellant’s offenses on

the community.

       In his final argument, Appellant complains that the court abused its

discretion by limiting the number of character witnesses at sentencing to

three: Appellant’s wife and daughter and a veterinarian who posted

Appellant’s pre-trial bail.2 We see no abuse of discretion.

       The admissibility of evidence, including sentencing evidence, rests with

the sound discretion of the trial court. Commonwealth v. King, 182 A.3d

449, 455, (Pa. Super. 2018). Just as courts may limit the number of character

witnesses during trial when additional testimony would be cumulative,

Commonwealth v. Owens, 649 A.2d 129, 136 (Pa. Super. 1994) (court

properly limited defendant to three reputation witnesses), so, too, was it

permissible for the trial court to restrict Appellant to three character witnesses

during sentencing, since Appellant failed to demonstrate that the additional

witnesses would have said something new or different in Appellant’s favor.

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


____________________________________________


2 Defense counsel had five other persons stand up who were ready and willing
to speak on Appellant’s behalf.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/19




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