J-A27018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RAHSEUL MAVEN                             :
                                           :
                    Appellant              :   No. 2931 EDA 2016

           Appeal from the Judgment of Sentence April 22, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0009780-2013


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                                FILED JUNE 25, 2019

      Rahseul Maven appeals from the April 22, 2016 judgment of sentence

of three to six years of imprisonment imposed following his conviction for

possession with intent to deliver (“PWID”) crack cocaine. Upon review, we

affirm.

      On July 13, 2013, Philadelphia Police arrested Appellant for, inter alia,

PWID following two controlled purchases of crack cocaine to a confidential

informant (“CI”) and a search of the second-floor apartment at 2601 South

Sheridan Street. On February 19, 2014, Appellant filed a motion for disclosure

of the CI’s identity under Pa.R.Crim.P. 573. Following a hearing, the trial court

denied the motion. Appellant also filed a Rule 600 motion, which was granted

on May 26, 2015.       This ruling was vacated following a hearing on the

Commonwealth’s motion for reconsideration.           On September 9, 2015,
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Appellant entered an open guilty plea to PWID, relinquishing, inter alia, his

rights under Pa.R.Crim.P. 600.

      On November 25, 2015, Appellant filed a motion to withdraw his guilty

plea, which the trial court granted on the same day. Also on November 25

and November 26, 2015, Appellant was recorded on a jail telephone arranging

for the destruction or removal of cocaine at his house in anticipation of his

release on house arrest pending trial. N.T. Trial, 4/14/16, at 140-45. On April

13, 2016, prior to the start of his jury trial, Appellant’s trial counsel orally

raised a motion in limine to preclude the Commonwealth from introducing and

admitting into evidence the telephone recordings. Following a hearing, the

trial court denied the motion and Appellant proceeded to his jury trial.

Appellant was convicted of PWID.

      On April 22, 2016, prior to the start of sentencing, Appellant’s trial

counsel orally moved for extraordinary relief under Pa.R.Crim.P. 704(B),

asserting   that   Appellant    was   entitled   to   a   new   trial   because   the

Commonwealth’s playing of the November phone calls unfairly prejudiced

Appellant. N.T. Sentencing, 4/22/15, at 5-8. The trial court denied the oral

motion for extraordinary relief and proceeded to sentencing.              Id. at 10.

Appellant received three to six years of imprisonment, followed by ten years

of probation for PWID.         The court also found Appellant ineligible for a

recidivism risk reduction incentive (“RRRI”) sentence.




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

denied. Appellant filed a notice of appeal and both Appellant and the trial

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

     Appellant presents six issues for our review:

     1.    Did not the trial court err when it denied [A]ppellant’s
           motion to preclude Pa.R.Evid. 404(b) evidence, where the
           admitted evidence consisted of conversations from two
           years after the instant case and did not meet the knowledge,
           intent, lack of mistake or identity exceptions to Rule 404(b);
           and the evidence was more prejudicial than probative?

     2.    Did not the lower court err in denying [A]ppellant’s Motion
           to Reveal Identity of Confidential Informant because 1)
           [A]ppellant satisfied his burden that his request was
           material and reasonable by raising a defense of mistaken
           identification; and 2) the Commonwealth failed to show any
           “reasonably specific type of danger” to the specific
           informant in this matter if the identity were disclosed?

     3.    Did not the trial court err by failing to grant [A]ppellant’s
           requested jury instruction of failure to call a potential
           witness, the Commonwealth’s confidential informant, in
           violation of his rights to due process and a fair trial under
           the state and federal constitutions?

     4.    Did not the trial court err by failing to impose a recidivism
           risk reduction incentive (RRRI) sentence where [A]ppellant’s
           single prior adjudication for possession of a weapon under
           18 Pa.C.S. § 907(b) and his alleged association with a gang,
           do not constitute a “history of present or past violent
           behavior,” thereby rendering [A]ppellant’s sentence illegal?

     5.    Did not the trial court err as a matter of law and violate the
           discretionary aspects of sentencing when it imposed a
           manifestly excessive and unreasonable sentence of three to
           six years of confinement plus ten years of probation, a
           sentence in the aggravated range of the sentencing
           guidelines, where the sentence as based on impermissible
           factors and was in excess of what was necessary to address


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            the gravity of the offense, the protection of the community
            and [A]ppellant’s rehabilitative needs?

      6.    Pursuant to [Commonwealth v. Mills], 162 A.3d 323 (Pa.
            2017), did not the motions court erroneously deny
            [A]ppellant’s motion to dismiss pursuant to Pa.R.Crim.P.
            600(A), after initially granting it, because, including the time
            attributable to the normal progression of a criminal case
            where there was no “judicial delay,” more than 365 days
            had elapsed before [A]ppellant was brought to trial?

Appellant’s brief at 5-6.

      We begin our analysis with Appellant’s first argument concerning the

admissibility of the 2015 prison recordings under Pa.R.E. 404(b). It is well-

settled that a trial court’s grant or denial of a motion in limine is subject to an

abuse of discretion standard of review. Commonwealth v. Sherwood, 982

A.2d 483, 495 (Pa. 2009). Specifically, Appellant argues that the trial court

abused its discretion in permitting the Commonwealth to introduce evidence

of subsequent bad acts because Appellant did not dispute any elements of

PWID and his sole defense theory at trial was that he was not the individual

who committed PWID. Appellant’s Brief at 24.

      In order to achieve a conviction for possession with intent to deliver

(“PWID”), “the Commonwealth must prove both the possession of the

controlled substance and the intent to deliver the controlled substance.”

Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008).                     When

controlled substances are not discovered on a defendant’s person, the

Commonwealth may meet its burden by showing constructive possession.

Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.Super. 2016). We have

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defined constructive possession as “conscious dominion” or “the power to

control   the   contraband   and   the    intent   to   exercise     that      control.”

Commonwealth         v.   Brown,   48    A.3d   426,    430    (Pa.Super.       2012).

Constructive    possession   may   be    established    by    the   totality    of   the

circumstances. Id.

      A review of the trial transcript reveals that Appellant countered the

Commonwealth’s evidence of his guilt by repeatedly alleging that he was not

the person possessing or selling the cocaine, suggesting that it was a

neighbor, Joseph Jordan, or someone that looked like him, that the CI lied,

and that Philadelphia Police Officer Jason Yerges was mistaken in his

identification. N.T. Trial, 4/13/16, at 148; N.T. Trial, 4/14/16, at 89-101, 139;

N.T. Trial, 4/15/16, at 7-33.      Additionally, Appellant focused on Joseph

Jordan’s guilt by introducing evidence that allowed him to argue that the drug

packaging discovered in the apartment matched the cocaine found on Joseph

Jordan when he was arrested, pointing out that the letter was addressed to

Appellant at a different address, and that the two separate apartments theory

was a convenient fiction created by the Commonwealth. N.T. Trial, 4/14/16,

at 141-43, 152-55; N.T. Trial, 4/16/16, at 14, 18.

      Since Appellant’s misidentification defense necessarily contested the

elements of PWID, it went directly to the heart of the Commonwealth’s case

against him.    See, e.g., Commonwealth v. Brooks, 7 A.3d 852, 857

(Pa.Super. 2010) (“In addition to proving the statutory elements of the crimes


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charged beyond a reasonable doubt, the Commonwealth must also establish

the identity of the defendant as the perpetrator of the crimes.”). Therefore,

the trial court did not err in declining to exclude the Commonwealth’s

subsequent bad acts evidence on the basis that the evidence was

unnecessary.   As Appellant did challenge the elements of PWID, we now

proceed to consider whether the telephone calls were admissible as an

exception to Pa.R.E. 404(b).

      Pennsylvania Rule of Evidence 404(b)(2) provides that evidence of other

crimes, wrongs, or bad acts is inadmissible to show that a person acted in

conformity therewith.   However, such evidence is admissible if offered for

another purpose, “such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Id. at

358. Additionally, the probative value of such evidence must outweigh its

potential for unfair prejudice. Id. Importantly, evidence will not be prohibited

merely because it is harmful to the defendant. Commonwealth v. Dillon,

925 A.2d 131, 141 (Pa. 2007). Thus, the trial court must conduct a balancing

test. Commonwealth v. Hairston, 84 A.3d 657, 664 (Pa. 2014).

      Appellant argues that the telephone conversations should have been

excluded as improper knowledge, intent, and lack of mistake evidence.

Appellant’s brief at 24-25. After careful review, we disagree and find that the

calls were admissible to establish Appellant’s knowledge and control over the

crack cocaine that was recovered from his apartment. Since this evidence


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directly rebutted Appellant’s misidentification defense, its admission was not

an abuse of the trial court’s considerable discretion.       Commonwealth v.

Mendez, 74 A.3d 256, 260 (Pa.Super. 2013) (finding that a trial court’s

evidentiary rulings are subject to an abuse of discretion standard on appellate

review). To the extent that the trial court admitted the evidence for another

reason, we can affirm on any basis supported by the record. Commonwealth

v. Williams, 125 A.3d 425, 433 n.8 (Pa.Super. 2015) (“To the extent our

legal reasoning differs from the trial court, we note that as an appellate court,

we may affirm on any legal basis supported by the certified record.”).1

       Appellant relies on Commonwealth v. Ross, 57 A.3d 85, 98-99

(Pa.Super. 2012), to conclude that the subsequent bad acts evidence should

have been excluded.            Appellant’s brief at 27, 29.          In Ross, the

Commonwealth’s purported Rule 404(b) exception evidence did not go directly

to an element that needed to be proven because intent could be inferred from

the   circumstances      surrounding      the   murder.   However,    our   case   is

distinguishable from Ross, since proof of Appellant’s constructive possession

of crack cocaine could not be inferred from the circumstances in the same way




____________________________________________


1 The Commonwealth argues that this claim is waived because the motion in
limine “is silent on the content of the recorded calls,” only containing a brief
paraphrasing of the content of the calls during the oral motion, and Appellant
has failed to make the calls a part of the certified record. Commonwealth’s
brief at 10. As the trial court did not find the record to be inadequate, we rely
on the record provided and also decline to find waiver.

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that the specific intent to kill can be inferred by the condition of a body in a

homicide case.

      In the telephone conversations, Appellant exerts control over crack

cocaine located under his bed by instructing the person he is speaking with to

remove the crack cocaine from that specific location. During the earlier search

of his residence, the same type of drug was found in his bedroom closet. N.T.

Trial, 4/14/16, at 52-53. Appellant attempted to disavow any knowledge or

control over the drugs found in his bedroom by pointing out that the two

apartments were connected by an interior hallway and that Joseph Jordan had

crack cocaine on him when he was arrested. Therefore, the trial court did not

abuse its discretion when it held that Appellant’s statements exerting control

over identical drugs in the same location established sufficient similarities to

create the necessary nexus rendering the conversations admissible.

      Finally, Appellant alleges that the probative value of the evidence was

substantially diminished by the two years that passed between the charges

and the subsequent phone calls, and the Commonwealth’s low need for the

evidence, such that the prejudice he suffered outweighed the probative value.

Appellant’s brief 29-31. While we agree that the passage of time did diminish

the value of the evidence slightly, that fact goes to the weight of the evidence,

not its admissibility. Appellant was not convicted of any crime based on these

calls and he was free to argue his position on the time gap to the jury. In




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fact, trial counsel did so, repeatedly. N.T. Trial, 4/13/16, at 151; N.T. Trial,

4/15/16, at 30.

       Notably, Appellant spent the majority of the two years incarcerated.2 It

is well-established that time spent incarcerated must be excluded in the

calculation of how much time has elapsed in a course of conduct analysis.

Commonwealth v. O’Brien, 836 A.2d 966 (Pa.Super. 2003) (holding

defendant’s prior ten-year old convictions were not too remote in time where

the   defendant       was    paroled     five    years   before   current   offense);

Commonwealth v. Rush, 646 A.2d 557 (Pa. 1994) (excluding defendant’s

period of incarceration from relevant time for remoteness analysis, where

eight years separated commission of crimes in question).              Therefore, the

relevant time lapse between the offense and subsequent calls is not too

remote because Appellant was incarcerated for much of the time. Additionally,

the similarities of the two incidents render the two-year time gap less

important.

       Finally, proof of possession played a vital role in the Commonwealth’s

burden of proof for PWID. Therefore, the Commonwealth had a significant

need for the subsequent bad acts evidence. Commonwealth v. Gordon,

673 A.2d 866 (Pa. 1996) (holding evidence of appellant’s similar prior sexual



____________________________________________


2Appellant was in custody from July 12, 2013 until March 13, 2015. N.T.
Sentencing, 4/22/16, at 26. He returned to custody on November 25, 2015,
when he withdrew his guilty plea. Id.

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assaults was not unduly prejudicial where Commonwealth was required to

prove non-consensual touching occurred; evidence was necessary for

prosecution of case, where uncorroborated testimony of victim might lead jury

to determine there was reasonable doubt as to whether appellant committed

the crime). Thus, the trial court did not err when it found that the evidence

demonstrating Appellant’s control over drugs in his bedroom was highly

probative and admissible evidence of his possession and control over drugs in

his residence two years prior. Trial Court Opinion, 8/29/17, at 14.

      Second, Appellant asserts that the trial court erred in failing to require

the Commonwealth to disclose the identity of the CI. Appellant’s brief at 33-

34. The Commonwealth responds that disclosing the CI’s identity was not

warranted because Appellant failed to demonstrate that the CI’s testimony

was material to the defense and because revealing the identity of the CI would

threaten the CI’s safety. Commonwealth’s brief at 28.

      “Our standard of review of claims that a trial court erred in its disposition

of a request for disclosure of an informant’s identity is confined to abuse of

discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa.Super.

2013). The Commonwealth has a qualified privilege to withhold the identity

of a CI. Commonwealth v. Marsh, 997 A.2d 318 (Pa. 2010). In order to

overcome that privilege, a defendant must establish that the information

sought is material to the preparation of his defense and that the request is

reasonable. Pa.R.Crim.P. 772(b)(2)(a)(i). Once this prerequisite is met, the


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trial court exercises its discretion to determine whether the information should

be revealed by balancing relevant factors, which are weighted in favor of the

Commonwealth.       Commonwealth v. Watson, 69 A.3d 605, 607-08

(Pa.Super. 2013); Marsh, supra, at 322 (holding that because Marsh failed

to make the threshold showing, “his motion should have been rejected without

any consideration of the other factors necessary to make a balanced

evaluation”).

      Appellant failed to show that the CI’s identity was material to his

defense. In this case, the CI was not the only eyewitness to the crime. At

the motions hearing, Officer Yerges testified that he observed both

transactions within twenty-five feet and positively identified Appellant as the

dealer. N.T. Motions, 4/1/14, at 6-9, 11. During both surveillance operations,

the CI was searched before and after the transaction, made phone calls to

Appellant in the officers’ presence, and was never out of the sight of Officer

Yerges. Id. at 6, 8-9. Additionally, the CI was not present or involved in the

search of 2601 South Sheridan Street.

      As the testifying officer directly observed the controlled buys and

identified Appellant based on his own observances, Appellant needed to offer

an explanation as to how the CI’s testimony could have benefitted him.

However, he has provided none. Therefore, the trial court did not commit




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legal error when it concluded that the Commonwealth was not required to

reveal the identity of the CI.3 Watson, supra at 608.

       Appellant’s next concern attacks the trial court’s denial of his request

for a missing witness jury instruction. Appellant contends that the trial court

erred in refusing to charge the jury that it could draw an inference, based on

the absence of the CI’s testimony at trial, that the CI’s testimony would have

been adverse to the Commonwealth.                  Appellant’s brief at 41-44.   The

Commonwealth responds that Appellant was not entitled to an instruction

because the informant’s identity was privileged and disclosure of his identity,

by putting him on the stand, would have put the informant’s life at risk.

Appellee’s brief at 35.

       “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Galvin, 985 A.2d 783, 798–99 (Pa. 2009). A trial court

may provide for a missing witness instruction against the Commonwealth

when, “a potential witness is available to only one of the parties to a trial, and



____________________________________________


3 Because Appellant failed to establish materiality, we need not assess whether
the trial court abused its discretion in balancing the relevant factors to
determine whether the CI’s identity should be revealed. However, if we were
to review it, we would find that the trial court did not abuse its discretion when
it concluded that the Commonwealth “identified convincing and credible
concerns regarding the safety of the confidential informant,” that outweighed
Appellant’s need for the testimony. Trial Court Opinion, 8/29/17, 10.

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it appears this witness has special information material to the issue, and this

person’s testimony would not merely be cumulative.”          Commonwealth v.

Evans, 664 A.2d 570, 574 (Pa.Super. 1995). However, “[a]n inference may

not be drawn where there exists a satisfactory explanation as to why the party

failed to call such witness.” Commonwealth v. Jones, 637 A.2d 1001, 1005

(Pa.Super. 1994). A satisfactory explanation exists where the Commonwealth

has a genuine concern for a witness's safety. Id.

      The record reflects that Appellant requested that the trial court give a

missing witness jury instruction at trial and contemporaneously objected to its

absence. N.T. Trial, 4/14/16, at 159; N.T. Trial, 4/15/16, at 70. The trial

court rejected that request, finding that the Commonwealth had provided a

satisfactory explanation, namely a genuine concern for the personal safety of

the CI, for its failure to call the CI to testify at trial. N.T. Trial, 4/14/16, at

160-61; N.T. Trial, 4/15/16, at 70. Accordingly, the trial court concluded that

Appellant was not entitled to a missing witness jury instruction, and refused

to provide the requested charge. We agree, and conclude that the trial court

did not err in refusing to issue a missing witness instruction.

      In his fourth claim, Appellant attacks the trial court’s determination that

he was not an “eligible offender” for the RRRI program, based on his prior

adjudication for possession of a weapon and association with a gang.

Appellant’s brief at 45. A challenge to a court’s failure to impose an RRRI

sentence implicates the legality of the sentence. Commonwealth v. Tobin,


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89 A.3d 663, 670 (Pa.Super. 2014). “It is legal error to fail to impose a RRRI

minimum on an eligible offender.” Id. As “statutory interpretation implicates

a question of law, our scope of review is plenary and our standard of review

is de novo.” Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa.Super. 2012)

(citation omitted).

      The RRRI Act requires the trial court to determine at the time of

sentencing whether the defendant is an “eligible offender.”        61 Pa.C.S.

§ 4505(a).    In order to be eligible for RRRI, a defendant must meet the

eligibility requirements codified at 61 Pa.C.S. § 4503. Instantly, Appellant is

not disqualified from RRRI eligibility based on any of the offenses enumerated

in § 4503. See 61 Pa.C.S. § 4503(2)-(6). Rather, Appellant challenges the

trial court’s RRRI ineligibility determination based on § 4503(1), which

disqualifies a defendant who has “a history of present or past violent

behavior.” 61 Pa.C.S. § 4503(1). The RRRI Act does not define “a history of

present or past violent behavior,” but our prior decisions provide helpful

guidance.    See Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014);

Commonwealth v. Finnecy, 135 A.3d 1028 (Pa.Super. 2016).

      In Chester, our Supreme Court addressed whether a conviction for

first-degree burglary demonstrated “violent behavior” under 61 Pa.C.S.

§ 4503(1) and found that it rendered the defendant ineligible for RRRI

treatment. In reaching this conclusion, our Court construed § 4503(1) as a

broad “catchall” provision that covered “violent behaviors not otherwise


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identified in the RRRI Act’s definition of eligible offender.” Chester, supra at

63. In Finnecy, we followed the Chester Court’s guidance and similarly found

that a conviction for resisting arrest rendered a defendant ineligible to receive

a RRRI sentence. Finnecy, supra at 1037. Ultimately, we found compelling

the fact that a conviction for resisting arrest, even by passive resistance,

requires:

      such a substantial use of force that an officer or offender may be
      harmed, thereby causing significant risk of injury, and invites the
      same potential for confrontation that greatly concerned the High
      Court in considering the offense of first-degree burglary. Indeed,
      the Chester Court was concerned with the possibility of the use
      of deadly force against either the offender or the victim and not
      the behavior that is actually exhibited during the commission of
      the crime.

Id. at 1036 (internal quotation and citation omitted).

      Appellant was adjudicated delinquent for possessing a .25 caliber semi-

automatic handgun, an offense not enumerated in the RRRI Act. Combined

with the potential for violence that Appellant’s long-term association with a

street gang and continued sale of cocaine in a residential neighborhood posed,

the trial court properly found Appellant ineligible based on his prior

adjudication for possession of a .25 caliber semi-automatic handgun.

      Appellant counters that his isolated adjudication for possession of a

weapon is insufficient to demonstrate a “history of present or past violent

behavior, based on Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa.

2017). However, Appellant reads the holding in Cullen-Doyle too broadly.

In Cullen-Doyle, the defendant pled guilty to one count of burglary graded

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as a first degree felony and several counts of conspiracy to commit felony-one

burglary. The defendant was determined to be RRRI ineligible based on those

convictions alone.    Our Supreme Court reversed the defendant’s eligibility,

holding that a “single, present conviction for a violent crime does not

constitute a history of violent behavior.” Id. at 1244. Notably, the Court

cautioned against reading § 4503 too broadly when dealing with a first-time

offender, since the legislature intended to include as many first-time

offender’s as possible in an attempt to reduce recidivism. Id. at 1242-43.

        Appellant’s case is readily distinguishable from Cullen-Doyle, since

Appellant is not a first-time offender and failed at previous attempts at

rehabilitation. Specifically, Appellant has a prior adjudication for possessing

a gun, a prior conviction for selling crack cocaine, and is a known associate of

a violent street gang.    Additionally, Appellant has already been given the

opportunity to rehabilitate through a juvenile placement and probation.

Instead of utilizing those opportunities to rehabilitate himself, Appellant has

continued to participate in illegal drug activity, even while incarcerated on this

case.    N.T. 4/22/16, 23-30.    Accordingly, the trial court did not abuse its

discretion in finding Appellant ineligible for RRRI.

        In his penultimate claim, Appellant challenges the discretionary aspects

of his aggravated range sentence based on the trial court’s alleged improper

reliance on his gang association. The following principles govern whether a

merits review is warranted:


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      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (1) whether appellant has filed a timely notice of
            appeal; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal
            defect; and (4) whether there is a substantial question
            that the sentence appealed from is not appropriate
            under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

      Appellant filed a motion for reconsideration of his sentence. However,

in it, he did not challenge his sentence based on the trial court’s impermissible

consideration of his gang association.        Instead, he targeted an incorrect

offense gravity score, the court’s failure to state adequate reasons for

imposing his sentence, and the court’s failure to adequately examine his

background, character and rehabilitative needs. Thus, his current claim is

waived. See Pa.R.A.P. 302. Similarly, while Appellant’s concise statement

challenged the discretionary aspects of his sentence, he asserted different

grounds than he alleges herein. Therefore, as Appellant has raised this issue

for the first time on appeal, it is waived. Commonwealth v. Moury, 992

A.2d 162, 170 (Pa.Super. 2010) (objections to the discretionary aspects of a

sentence are waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed).

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       Even if we were to determine that Appellant’s claim was not waived, we

would find no merit to its underlying allegation.4 At sentencing and in a pre-

sentencing     memorandum,         the   Commonwealth   presented   uncontested

evidence that “[Appellant] is a self-identified member of ‘7th Street’ gang.”

Commonwealth’s pre-sentencing memorandum, 4/21/16, at 5. The record

reveals that the trial court considered this factor along with all of the other

details of Appellant’s background, as highly relevant to Appellant’s potential

for rehabilitation. Trial Court Opinion, 8/29/17, at 19.

       Further, the trial court also had the benefit of sentencing guidelines and

a presentence report, which the court is presumed to have considered and

weighed in crafting its sentence. See Commonwealth v. Griffin, 65 A.3d

932, 937 (Pa.Super. 2013) (finding that where the sentencing court has

reviewed a pre-sentence report, it is presumed that the court was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with any mitigating factors). Most notably, the trial court

found Appellant’s “illegal drug dealing in the presence of his children to be the

most alarming factor when fashioning the [o]rder of [s]entence,” not his gang




____________________________________________


4 Appellant’s brief contains a statement of reasons relied upon for his challenge
to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f).
If his claim were properly preserved, we would have found that it raised a
substantial question. Commonwealth v. Dodge, 77 A.3d 1263, 1273
(Pa.Super. 2013) (holding reliance on impermissible sentencing factors can
raise a substantial question).

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affiliation. Id. at 20. Accordingly, we find nothing in the record to indicate

that the court abused its discretion in imposing Appellant’s sentence.

        Finally, Appellant argues that the motions court erroneously denied his

motion to dismiss pursuant to Pa.R.Crim.P. 600, because more than 365 days

elapsed from arrest to trial and there was no attributable “judicial delay.”

Appellant’s brief at 57. Appellant concludes that this Court should vacate his

judgment of sentence and dismiss his conviction.             The Commonwealth

responds that no relief is due, since Appellant was tried and convicted before

the mechanical run date. Commonwealth’s brief at 46. We agree.

        We review Rule 600 motions under the following standard of review:

              In evaluating speedy trial issues, our standard of review is
        whether the trial court abused its discretion, and our scope of
        review is limited to the trial court’s findings and the evidence on
        the record, viewed in the light most favorable to the prevailing
        party. 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 unreasonably, or the result of partiality, prejudice,
        bias, or ill will, as shown by the evidence or the record, discretion
        is abused.

Commonwealth v. Miskovitch, 64 A.3d 672, 677 (Pa.Super. 2013) (internal

citations and quotation marks omitted). Rule 600 provides, in relevant part

that:

        (2)   Trial shall commence within the following time periods.

              (d)   When a trial court has granted a new trial and
                    no appeal has been perfected, the new trial shall


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                   commence within 365 days from the date on
                   which the trial court’s order is filed.

Pa.R.Crim.P. 600(a)(2)(d). Importantly, an order permitting an appellant to

withdraw his guilty plea “effectively grant[s] a new trial and commence[s] an

entirely   new   speedy    trial   date   pursuant   to   Rule   [600(a)(2)(d)].”

Commonwealth v. Betz, 664 A.2d 600, 613-14 (Pa.Super. 1995); see also

Pa.R.Crim.P. 600, comment.

      Here, the trial court permitted Appellant to withdraw his guilty plea on

November 25, 2015. Appellant was then tried and convicted in April of 2016,

well within the 365 days that the Commonwealth had to bring Appellant to

trial. Therefore, this claim is meritless on its face.

      Appellant relies on Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017),

to challenge a ninety-nine day delay that occurred before he entered into his

guilty plea. The trial court considered this claim and deemed that the relevant

time period was excusable because it was time that the Commonwealth spent

attempting to respond to Appellant’s “unusual and comprehensive discovery

[request for] documents not normally obtained within the pre-trial process.”

Trial Court Opinion, 8/29/17, at 12. We agree.

      In Mills, the Court held that there was no bright-line that would

automatically exclude time spent preparing for trial between the scheduling

conference and the first trial listing. Mills, supra, at 324-25. Instead, the

Mills Court determined that trial courts have discretion “to differentiate

between time necessary to ordinary trial preparation and judicial delay arising

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out of the court’s own scheduling concerns.” Id. at 325. As an “unusual”

discovery request would not implicate “ordinary trial preparation,” the Mills

Court’s ultimate holding is irrelevant.   Accordingly, Appellant’s reliance on

Mills for that proposition is misplaced, and the trial court properly dismissed

Appellant’s Rule 600 challenge.

      Judgment affirmed.

      Judge McLaughlin joins the memorandum.

      Judge Stabile files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/19




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