J-S79002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAMS TUNNER, AKA TUNNER
WILLIAMS,

                            Appellant                  No. 2392 EDA 2012


        Appeal from the Judgment of Sentence entered August 2, 2012,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0002730-2010



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

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

        Williams Tunner, aka Tunner Williams1 (“Appellant”), appeals from the

judgment of sentence imposed after a jury convicted him of criminal

conspiracy.2 After careful review, we vacate the judgment of sentence and

remand for resentencing.

        The trial court summarized the pertinent facts and procedural history

as follows:

              On May 9, 2008, the Narcotics Field Unit of the
        Philadelphia Police Department set up surveillance in the area of
        55th Street and Warrington Avenue in the City and County of
____________________________________________


1
    Appellant is also referenced in the record as William Turner.
2
    18 Pa.C.S.A. § 903.



* Retired Senior Judge assigned to Superior Court.
J-S79002-14


      Philadelphia. A confidential informant had relayed information
      that drugs were being sold out of a residence located at 5501
      Warrington Avenue. Upon arrival at that site, Sergeant Robinson
      searched the confidential informant for any drugs or money. At
      approximately 7:30 p.m., Sergeant Robinson set up surveillance
      on 55th Street and observed the confidential informant approach
      5501 Warrington Ave. The Confidential Informant knocked on
      the door and was allowed inside the residence. Less than a
      minute later, an unknown black male exited the home and
      walked south on 55th Street, past Sergeant Robinson’s location.
      Officer Simmons then picked up surveillance of the black male
      from his location further down 55th Street. Officer Simmons saw
      the unidentified black male enter the rear passenger side of a
      white Buick containing three other men. After approximately 1
      to 2 minutes, the black male exited the vehicle. The unidentified
      black male then returned to 5501 Warrington Ave.
      Approximately 15 seconds later, the confidential informant
      exited the residence and rendezvoused with Sergeant Robinson
      at a predetermined location. The confidential informant was
      found to be in possession of three red ziplock packets of what
      was later identified as crack cocaine. The informant also did not
      have the forty dollars of prerecorded buy money with him.

             After the unidentified black male exited the Buick, the car
      began driving away and was stopped on Belmar Avenue by
      Officer Simmons, Officer London and two uniformed Philadelphia
      Police Officers. The occupants were ordered to exit the vehicle.
      Officer London secured the driver, later identified as Dean
      Bloodworth. Mr. Bloodworth was found to be in possession of
      $80 USC, forty of which was the prerecorded buy money. As the
      Appellant exited the passenger side of the vehicle, Officer
      Simmons observed an amber pill bottle fall into the street. The
      pill bottle contained 13 red ziplock packets matching those
      packets found on the confidential informant, containing what was
      later identified as crack cocaine. Officer Simmons immediately
      recognized the bottle’s contents as narcotics when he saw it.
      Appellant and Mr. Bloodworth were arrested and brought to the
      Philadelphia Police station.      Both the drugs found on the
      confidential informant and the drugs found in the pill bottle
      tested positive for cocaine base.

Trial Court Opinion, 12/19/13, at 2-3 (citations to record omitted).




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      Appellant was charged with criminal conspiracy to possess controlled

substances with intent to deliver (18 Pa.C.S.A. § 903; 35 P.S. § 780-

113(a)(30)); possession with intent to deliver (35 P.S. § 780-113(a)(30));

and simple possession of a controlled substance (35 P.S. § 780-113(a)(16)).

A jury trial commenced on March 13, 2012, and on March 14, 2012, the jury

found Appellant guilty of criminal conspiracy, and not guilty of the remaining

charges.

      Following a hearing on August 2, 2012, the trial court sentenced

Appellant to 4½ to 9 years of imprisonment. Appellant filed a post-sentence

motion on August 10, 2012, and a notice of appeal on August 29, 2012. On

December 21, 2012, the trial court entered an order denying Appellant’s

post-sentence motion. Appellant raises the following issues for our review:


      1.    Whether the evidence was sufficient to sustain a verdict of
            guilty.

      2.    Whether the verdict was against the weight of the
            evidence.

      3.    Whether the trial court erred when it answered “yes” to
            the question of whether or not the jury could return a
            verdict of guilt on the charge of conspiracy only?

      4.    Whether the sentence imposed is illegal, improper, or
            excessively punitive where [Appellant] could be sentenced
            to a term of imprisonment of a greater degree than that of
            which he was convicted and where the sentence (4½ to 9
            years) was six months shy of the statutory maximum and
            was beyond the aggravated range recommended in the
            sentencing guidelines. The Court failed to consider the
            guidelines in fashioning an appropriate sentence.


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      5.      Whether the trial court erred in permitting Sgt. Davis to
              testify as to the [Appellant’s] character and/or a victim
              impact    statement    regarding   his  encounters   with
              [Appellant] and his family.

Appellant’s Brief at 3.

      In his first issue, Appellant argues that the evidence was insufficient to

support his conspiracy conviction.       Appellant’s Brief at 9-12.          When

reviewing a challenge to the sufficiency of the evidence, we are bound by

the following:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth's
      burden may be met by wholly circumstantial evidence and any
      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.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

      Appellant maintains that his mere presence in a vehicle was an

insufficient basis for the trial court to conclude that he was engaged in a

conspiracy.      Appellants Brief at 10-12.   In order to sustain a criminal

conspiracy conviction, the Commonwealth must prove:          “(1) an intent to

commit or aid in an unlawful act, (2) an agreement with a co-conspirator

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and (3) an overt act in furtherance of the conspiracy.” Commonwealth v.

Thomas, 65 A.3d 939, 943 (Pa. Super. 2013) (citations omitted).

      Appellant is correct that “[t]o establish complicity, mere presence at

the scene of a crime and knowledge of the commission of criminal acts is not

sufficient.” Commonwealth v. Knox, 50 A.3d 749, 756 (Pa. Super. 2012)

(citation omitted). However:

      a conspiracy may be inferred where it is demonstrated that the
      relation, conduct, or circumstances of the parties, and the overt
      acts of the co-conspirators sufficiently prove the formation of a
      criminal confederation. 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. Even if the conspirator did not act as a
      principal in committing the underlying crime, he is still criminally
      liable for the actions of his co-conspirators in furtherance of the
      conspiracy.


Knox, 50 A.3d at 755 quoting Commonwealth v. McCall, 911 A.2d 992,

996–97 (Pa. Super. 2006) (citation omitted). See also Thomas, 65 A.3d at

943 (“Because it is difficult to prove an explicit or formal agreement to

commit an unlawful act, such an act may be proved inferentially by

circumstantial evidence, i.e., the relations, conduct or circumstances of the

parties or overt acts on the part of the co-conspirators.”) (citations omitted).

      Here, the record indicates that evidence was sufficient to support the

conspiracy conviction. As the trial court explained:

      Appellant was in a vehicle that was entered by an unknown male
      who had come from a home where a confidential informant said
      drugs were being sold. That unknown male then returned to the
      home and provided the informant with several red baggies of
      crack cocaine. As soon as Appellant was removed from his

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      vehicle, a pill bottle containing several red baggies of crack
      cocaine fell from where he had been seated. Those baggies
      matched the ones that were recovered from a confidential
      informant. The other occupant of that vehicle was found to be in
      possession of $40 in pre-recorded buy money that had been
      provided to the confidential informant. The jury determined that
      the evidence showed that Appellant and the vehicle’s other
      occupant had entered into an agreement with a shared criminal
      intent and committed an overt act in furtherance of their
      conspiracy.

Trial Court Opinion, 12/19/13, at 7.

      Upon review, we agree with the trial court. The jury acted within its

province as factfinder in concluding from the evidence that Appellant was

involved in the transaction with the unknown male who exited the residence

at 5501 Warrington, and received drugs from Appellant and/or Mr.

Bloodworth in exchange for the $40 of pre-recorded buy money provided to

him by the confidential informant, before returning to the residence to

deliver the drugs, particularly since the drugs were retrieved from

Appellant’s side of the car.    Accordingly, Appellant's sufficiency issue is

without merit.

      Appellant next argues that the verdict was against the weight of the

evidence.   Our scrutiny of whether a verdict is against the weight of the

evidence is governed by the principles set forth in Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted):

            The weight of the evidence is exclusively for the finder of
      fact who is free to believe all, part, or none of the evidence and
      to determine the credibility of the witnesses. An appellate court
      cannot substitute its judgment for that of the finder of fact.
      Thus, we may only reverse the lower court's verdict if it is so
      contrary to the evidence as to shock one's sense of justice.

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            Moreover, where the trial court has ruled on the weight
      claim below, an appellate court's role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.


      In    his   weight     claim,     Appellant    argues    that   the   evidence   was

contradictory and unreliable. “A new trial is warranted on a challenge to the

weight of the evidence only if the verdict is so contrary to the evidence as to

shock one's sense of justice. Furthermore, issues of credibility are left to the

trier of fact; the jury is free to accept all, part, or none of the witness

testimony.” Commonwealth v. Russell, 665 A.2d 1239, 1246-1247 (Pa.

Super. 1995) (citations omitted).              Here, the jury found credible the

testimony of Officers Robinson and Simmons.                   Specifically, the jury found

credible the officers’ testimony about their recovery of cocaine that fell from

Appellant’s side of the vehicle, and $40 of pre-recorded buy money from Mr.

Bloodworth.          Furthermore, although Appellant baldly asserts that the

testimony of Commonwealth’s witnesses was unreliable and contradictory,

Appellant    fails    to   cite   the    purported    inconsistent    and    contradictory

testimony. Credibility determinations are for the jury to resolve and we will

not disturb such credibility determinations on appeal. See Commonwealth

v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995) (it is solely for the

finder of fact to determine the credibility of witnesses and to resolve any




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J-S79002-14



conflicts or inconsistencies in the evidence).     Appellant’s weight of the

evidence claim fails.

      In his third issue, Appellant argues that the trial court erred in

informing the jury that it could return a verdict of guilty on the charge of

conspiracy only. Appellant refers to a written jury question submitted by the

jury to the trial court during deliberations on March 15, 2012.      The jury’s

question was:

      Is it legally possible to convict of conspiracy without convicting
      of possession or intent to distribute?

Jury Question, 3/15/12.

      In response to the jury’s question, the trial court stated on the record:

      The simple answer to that is yes. Each charge stands by itself.
      So PWID is one crime. The criminal conspiracy is a completely
      separate and distinct crime, as is the KI.

N.T., 3/15/12, at 57.

      Appellant challenges the trial court’s decision to inform the jury that

they could convict him solely of conspiracy. In Commonwealth v. Riley,

811 A.2d 610, 618 (Pa. Super. 2002) we explained, “as conspiracy requires

proof only of an agreement and an overt act in furtherance of the

conspiracy, a defendant may be found guilty of conspiracy without being

convicted of the underlying offense.”    In other words, “commission of the

underlying crime is not an element of criminal conspiracy.      ‘Conspiracy to

commit a crime and the underlying crime itself are two entirely separate



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offenses with separate elements required for each.’”       Commonwealth v.

Thoeun Tha, 64 A.3d 704, 711 (Pa. Super. 2013) quoting Commonwealth

v. Johnson, 719 A.2d 778, 791 (Pa. Super. 1998). Appellant’s claim that

the trial court erred in informing the jury that they could convict him of

conspiracy while finding him not guilty of the remaining charges is therefore

meritless. See Commonwealth v. Smith, 606 A.2d 939 (Pa. Super. 1992)

(finding that apparent inconsistency where the jury found the appellant

guilty of the conspiracy charge while finding him not guilty of delivery and

possession was not grounds for relief).

       In his fourth issue, Appellant argues that the trial court imposed an

illegal sentence and/or abused its sentencing discretion. Appellant’s Brief at

17-23. “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.    An illegal sentence must be

vacated.     Likewise, a sentence that exceeds the statutory maximum is

illegal.   If a court “imposes a sentence outside of the legal parameters

prescribed by the applicable statute, the sentence is illegal and should be

remanded for correction.”    Commonwealth v. Infante, 63 A.3d 358 (Pa.

Super. 2013). Appellant’s brief is devoid of any support or argument for his

assertion that the sentence was illegal other than an assertion that “the jury

did not have on the verdict sheet what substantive offense the conspiracy

was to commit.”     Appellant’s Brief at 21.     Appellant fails to develop this

argument about legality with any cogent discussion.        Moreover, Appellant


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acknowledges that the sentence did not exceed the statutory maximum of

60 months. See Appellant’s Brief at 18. Given the lack of any development

of Appellant’s challenge to the legality of his sentence, we decline to address

it.

      However, Appellant also argues that the trial court abused its

discretion when it sentenced him to 4½ to 9 years of imprisonment.           A

challenge to the discretionary aspects of a sentence is not appealable as of

right. Rather, Appellant must petition for allowance of appeal pursuant to 42

Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.

Super. 2004).


            Before we reach the merits of this [issue], we must engage
      in a four part analysis to 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; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. The third and fourth of
      these requirements arise because Appellant's attack on his
      sentence is not an appeal as of right. Rather, he must petition
      this Court, in his concise statement of reasons, to grant
      consideration of his appeal on the grounds that there is a
      substantial question. Finally, if the appeal satisfies each of these
      four requirements, we will then proceed to decide the
      substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

      Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal.   Appellant has additionally included in his brief a

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concise statement pursuant to Pa.R.A.P. 2119(f).     See Appellant’s Brief at

17-18. Therefore, we proceed to determine whether Appellant has raised a

substantial question for our review.

      Appellant argues that the trial court abused its discretion when it

imposed a sentence for conspiracy well beyond the aggravated range of the

sentencing guidelines, and in so doing, failed to give proper consideration to

mitigating factors, and failed to state on the record the reasons for the

sentence. Appellant’s Brief at 9, 17-23. Accordingly, Appellant asserts that

his sentence was excessive. “A substantial question will be found where the

defendant advances a colorable argument that the sentence imposed is

either inconsistent with a specific provision of the code or is contrary to the

fundamental norms which underlie the sentencing process. A claim that the

sentencing court imposed an unreasonable sentence by sentencing outside

the guideline ranges presents a “substantial question” for our review.”

Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). See also

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en

banc) (a substantial question is raised where an appellant alleges that the

sentencing court erred by imposing an aggravated range sentence without

consideration of mitigating circumstances). Appellant has thus presented a

substantial question and we proceed to review his claim.

      “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a


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J-S79002-14


manifest abuse of discretion.”     Commonwealth v. Garcia-Rivera, 983

A.2d 777, 780 (Pa. Super. 2009).

      More specifically, 42 Pa.C.S.A. § 9721(b) offers the following
      guidance to the trial court's sentencing determination:

            [T]he sentence imposed should call for confinement
            that is consistent with the protection of the public,
            the gravity of the offense as it relates to the impact
            on the life of the victim and on the community, and
            the rehabilitative needs of the defendant.

                                     ***

      The ... weighing of factors under 42 Pa.C.S. § 9721(b) [is]
      exclusively for the sentencing court, and an appellate court could
      not substitute its own weighing of those factors. The primary
      consideration, therefore, is whether the court imposed an
      individualized sentence, and whether the sentence was
      nonetheless unreasonable for sentences falling outside the
      guidelines, or clearly unreasonable for sentences falling within
      the guidelines, pursuant to 42 Pa.C.S. § 9781(c).


Commonwealth v. Bricker, 41 A.3d 872, 875-876 (Pa. Super. 2012)

(citations omitted).

      Section 9781(c) specifically defines three instances in which the

appellate courts should vacate a sentence and remand: (1) the sentencing

court applied the guidelines erroneously; (2) the sentence falls within the

guidelines, but is “clearly unreasonable” based on the circumstances of the

case; and (3) the sentence falls outside of the guidelines and is

“unreasonable.” 42 Pa.C.S. § 9781(c). Bricker, 41 A.3d at 876

      “[T]he term ‘unreasonable’ generally means a decision that is either

irrational or not guided by sound judgment. [A] sentence can be defined as


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unreasonable either upon review of the four elements contained in §

9781(d) or if the sentencing court failed to take into account the factors

outlined in 42 Pa.C.S.A. § 9721(b).” Commonwealth v. Daniel, 30 A.3d

494, 497 (Pa. Super. 2011), quoting Commonwealth v. Walls, 926 A.2d

957 (Pa. 2007).      However, “rejection of a sentencing court's imposition of

sentence on unreasonableness grounds [should] occur infrequently, whether

the sentence is above or below the guidelines ranges.” Commonwealth v.

Macias, 968 A.2d 773, 777 (Pa. Super. 2009) quoting Walls, 926 A.2d

at 964.

      Pursuant to 42 Pa.C.S.A. § 9871, an appellate court must have regard

for the following statutory factors in our review of the certified record: (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. § 9871(d)(1)-(4).

      “In every case where the court imposes a sentence ... outside the

guidelines adopted by the Pennsylvania Commission on Sentencing ... the

court shall provide a contemporaneous written statement of the reason or

reasons for the deviation from the guidelines.        42 Pa.C.S.A. § 9721(b).

However, [t]his requirement is satisfied when the judge states his reasons

for the sentence on the record and in the defendant's presence ... in open


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court.”   Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super.

2014).


      [Section 9721(b)] requires a trial judge who intends to sentence
      a defendant outside the guidelines to demonstrate on the record,
      as a proper starting point, his awareness of the sentencing
      guidelines. Having done so, the sentencing court may deviate
      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, so long as he also states of record the factual basis
      and specific reasons which compelled [him] to deviate from the
      guideline range.
                                     ***

      The court's statement of reasons for deviating from the
      guidelines serves not only as a record of the court's rationale for
      the deviation but also as evidence that the court considered the
      guidelines. We cannot analyze whether there are adequate
      reasons for the deviation unless it is first apparent that the court
      was aware of, and considered the guidelines.

Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995)

(citations omitted).

      Here, the guidelines recommended a standard range of sentence of 15

to 21 months, +/- 6 months in the mitigated and aggravated ranges. N.T.,

8/2/12, at 11.    Appellant’s sentence of 4½ to 9 years fell outside the

aggravated range of the guidelines.

      At the sentencing hearing, the trial court provided the following

reasons on the record for its sentence:

           I have reviewed everything and I didn’t have an
      opportunity to review the [Preliminary Arraignment Reporting
      System] PARS. I am not claiming I am not going to. I have


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      reviewed everything and the PSI and the prior record score in
      great detail. I paid particular attention to the presentence
      investigation.

             I told you to take it seriously and you told the officer that
      this is what hanging around with the wrong crowd gets you.
      That is not what it gets, it gets you shot. And dealing in drugs
      and that is a conspiracy and you openly fought me on that.

            I don’t really think you are remorseful for what you have
      done. And I told you if things don’t go your way, it is a
      minimum of 2 to 4.         Under the circumstances considering
      everything and you keep rolling the dice, you did come up snake
      eyes this time. It is your right.

            Based on the totality of everything, it is 4 and a half to 9
      years.

N.T., 8/2/12, at 39.

      At sentencing, the trial court made clear that it had “reviewed the PSI

and the prior record score in great detail.” Id. However, although cognizant

of Appellant’s prior record, the trial court did not set forth the relevant

guideline ranges, or indicate that it was aware of and considered the

sentencing guidelines before electing to depart from them.

      Moreover, the trial court’s brief explanation for its sentence failed to

state the “factual basis and specific reasons” which compelled the drastic

upward departure from the guideline range. Johnson, supra. Although the

trial court noted that it had “reviewed the PSI” and felt that Appellant was

not remorseful, the trial court failed to state what factors revealed in the PSI

report it was relying on to warrant the upward deviation, or how Appellant’s

lack of remorse was so atypical as to warrant imposition of a sentence so far

in excess of the guideline range.    Additionally, the record does not reflect


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that the trial court took into account the relevant sentencing factors

enumerated in § 9721(b) -- including the protection of the public, the

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

on the community, and Appellant’s rehabilitative needs -- before sentencing

him outside of the guidelines.

      “[A]lthough sentencing judges have broad discretion, they do not

have unfettered or unchecked discretion.         Therefore, when a sentence

exceeds the aggravated range of the guidelines and there is an allegation of

excessiveness, this Court must review the record to determine whether

there was an abuse of discretion.” Commonwealth v. Monahan, 860 A.2d

180, 182 (Pa. Super. 2004) (citations omitted). Upon review, we agree with

Appellant that the reasons for the trial court’s upward deviation were not

clearly stated on the record as required under section 9721(b) of the

Sentencing Code. Therefore, we are constrained to vacate the judgment of

sentence and remand for re-sentencing.

      In his final issue, Appellant argues that the trial court erred in allowing

Sergeant Davis of the Philadelphia Police Department to testify at the

sentencing hearing about his personal knowledge of Appellant’s character,

Appellant’s reputation for intimidation in the community, and his previous

encounters with Appellant, who displayed threatening behavior. Appellant’s

Brief at 24-25.      Specifically, Appellant argues that Sergeant Davis’s

testimony constituted inadmissible hearsay and was based on the officer’s

unsubstantiated recollections of his previous encounters. Id.

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      “Sentencing courts may consider evidence that might not be admitted

at trial.”   Commonwealth v. Charles, 488 A.2d 1126, 1129 (Pa. Super.

1985). “Significantly, the admission of hearsay in sentencing proceedings,

especially those which do not involve a capital crime, is a common

occurrence.    In fact, sentencing courts, as a matter of course, consider

hearsay in nearly every sentencing case since pre-sentence investigations

are routinely ordered and considered by the court, and a pre-sentence report

is the very definition of hearsay ...” Commonwealth v. Medley, 725 A.2d

1225, 1230 (Pa. Super. 1999).      A sentencing judge “may appropriately

conduct an inquiry broad in scope, largely unlimited either as to the kind of

information he may consider, or the source from which it may come.

Nevertheless, the discretion of a sentencing judge is not unfettered; a

defendant has the right to minimal safeguards to ensure that the sentencing

court does not rely on factually erroneous information, and any sentence

predicated on such false assumptions is inimicable to the concept of due

process.”     Commonwealth v. Schwartz, 418 A.2d 637, 640-641 (Pa.

Super. 1980).

      Here, we find no abuse of discretion in the trial court’s decision to

permit Sergeant Davis’s testimony. Sergeant Davis testified to information

within his personal knowledge, and Appellant was permitted to cross-

examine the sergeant as to the basis for his opinions to reveal any

weaknesses and inconsistency in his testimony. To the extent that Appellant

argues that the trial court improperly relied on Sergeant Davis’ testimony in

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its imposition of sentence, we reiterate that the trial court failed to provide

adequate reasons on the record for its sentence, and therefore we cannot

evaluate whether the trial court relied solely on the sergeant’s testimony in

imposing an above-guideline range sentence, to the exclusion of other

sentencing factors, or otherwise improperly considered the testimony in its

imposition of sentence. However, in light of our decision to remand for re-

sentencing, we need not address such claim.

      Judgment of sentence vacated.          Case remanded.        Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014




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