J-A08037-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                 v.                             :
                                                :
                                                :
    RICHARD HORNE                               :
                                                :
                        Appellant               :    No. 1055 WDA 2018

          Appeal from the Judgment of Sentence Entered March 1, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0008241-2016


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                                    FILED JULY 16, 2019

        Richard Horne appeals from the judgment of sentence entered following

his bench trial convictions for firearms offenses. Horne challenges the

discretionary aspects of his sentence. We affirm.

        The facts giving rise to Horne’s arrest are as follows. While arresting

Horne on an outstanding warrant in an unrelated case, Detective Jeffrey

Tomer “observed a firearm in [Horne’s] right pants pocket.” Trial Court

Opinion (TCO), filed 10/18/18, at 4, 5. Horne did not have a license for the

firearm    and    was    otherwise     ineligible   to   carry   a   firearm.   Id.   The

Commonwealth charged Horne with firearms not to be carried without a

license, persons not to possess firearms, receiving stolen property, and

resisting arrest (“the instant charges”).1
____________________________________________


1   18 Pa.C.S.A. §§ 6106(a)(1); 6105(a)(1); 3925(a); and 5104, respectively.
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        Before   trial,   Horne     failed     to   appear   for   court   twice.   See

Commonwealth’s Memorandum in Aid of Sentencing, filed 2/27/18 at ¶¶ 14,

15. After the second time, police were unable to locate Horne for five months,

and eventually found him in the bedroom of an apartment, where they

arrested him. Id. at ¶ 15, 18. The officers also found a firearm in the bedroom.

Id. Consequently, the Commonwealth instituted additional charges against

Horne, but later nolle prossed those charges. See Docket, CP-02-CR-

0012827-2017.

        The instant charges proceeded to a bench trial and the court found

Horne guilty of carrying a firearm without a license and persons not to possess

a firearm.2 Immediately following the bench trial, defense counsel presented

witnesses for sentencing purposes, which the court scheduled for a later date.

        At sentencing, the Commonwealth told the trial court that the firearm

found on Horne when he was arrested for the instant charges had allegedly

been used in a shooting two days before the arrest:

        In this case he was only 20 years old, and I would note, as I did
        in the memorandum, that the firearm Detective Tomer took from
        his pocket in this case was sent to the Crime Lab and tested by
        the firearms experts at the lab. They found that two days prior to
        [Detective] Tomer taking this gun out of his pocket it was used to
        shoot a young man named Eric Williams in the North Side section
        of the city, specifically on Belleau Drive, two days prior.

N.T., Sentencing Hearing, 3/1/18, at 8.



____________________________________________


2   18 Pa.C.S.A. §§ 6106(a)(1) and 6105(a)(1), respectively.

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     The Assistant District Attorney (“ADA”) went on to say that the second

firearm had been used in two shootings, one resulting in a death 16 days

before Horne’s arrest on the instant charges, and another involving Eric

Williams and his mother. See id. at 9, 22. This information was also in the

Commonwealth’s sentencing memorandum, which also stated that the crime

lab reports connected the second gun to a separate homicide as well as to

another shooting of Eric Williams:

     12. Two days later, on June 27, 2016, the Defendant (who was 20
     years old at the time) was arrested in possession of a .45 caliber
     Glock pistol at 1440 Davis Avenue, in the North Side section of
     the City of Pittsburgh. City of Pittsburgh Police Officer Jeffrey
     Tomer located the .45 caliber Glock pistol inside the Defendant’s
     pants’ pocket. Scientist William Best of the Allegheny County
     Officer of the Medical Examiner examined that .45 caliber Glock
     pistol and authored a lap report at 16LAB06388, wherein Scientist
     Best concluded that .45 caliber Glock pistol discharged the casings
     found on scene of the shooting of Eric Williams on June 25, 2016.
     Thus, merely two days before Officer Tomer arrested the
     Defendant in possession of the .45 caliber Glock pistol in
     this case, it was used in the shooting of victim Eric
     Williams.

                                     ***

     19. The recovered 9mm caliber Taurus pistol was sent to the
     Allegheny County Office of the Medical Examiner where it was
     examined by scientist Thomas Morgan, who authored a lab report
     at 17LAB06019, concluding that the recovered 9mm caliber pistol
     discharged the 9mm casings found at the scene of homicide of
     Shayne Abrams on June 4, 2017, and that same 9mm caliber
     pistol also discharged the 9mm casings found at the scene of the
     second shooting of Eric Williams on June 25, 2017.

Commonwealth’s Sentencing Memo at ¶¶ 12, 19 (bold and italics in original;

underlining added).


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      The Commonwealth did not present the lab reports to the court, place

them in evidence, or present the testimony of a lab employee with personal

knowledge of the test results. The Commonwealth also did not charge Horne

in any of the shootings.

      Defense counsel did not object to the ADA’s statements about the lab

reports or to the characterizations of them in the Commonwealth’s sentencing

memorandum. However, defense counsel argued that the Commonwealth’s

attempts to link Horne to the shootings were “speculation” and pointed out

that Horne had not been convicted in either shooting:

      [Defense Counsel]: With respect to what Ms. Pratt said, you know,
      part of the – one of the fundamental tenets and principles of our
      justice system is that people are innocent until proven guilty, and
      speculation and arrests and things that did not lead to conviction
      is merely that, Your Honor.

Id. at 13.

      The trial court responded that it found the prosecutor’s statements that

the crime lab reports linked the guns found on Horne to two shootings

involving the same victim to be “overwhelming and powerful” circumstantial

evidence. Id. at 13. In response, defense counsel stated the following:

      First of all, we know Mr. Horne isn’t acquiring these guns in a legal
      fashion. This is the nature of the street, as you may call it. People
      – it would make sense that someone who used a gun in shooting
      or some sort or attack on another person would discard that gun
      or sell that gun or get rid of that gun. Mr. Horne has not in any
      way been convicted of these offenses or even charged with these
      offenses, Your Honor, and I think that to use that against him is
      inappropriate in this decision.




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Id. at 14-15. The court replied, “I don’t disagree with you, but I can sentence

him to a guideline sentence to almost exactly what she asked for and it will

be a legitimate sentence.” Id. at 15.

      Horne exercised his right to allocution but did not address the

Commonwealth’s allegation that he was involved in the shootings. Id. at 20-

21.

      The trial court then sentenced Horne to three and one-half to seven

years’ incarceration for carrying a firearm, followed by five years’ probation

for the possession of a firearm conviction. Horne filed a post-sentence motion,

arguing that the trial court improperly considered the ballistic testing when

Horne had not been convicted or charged in connection with any of the

shootings. The trial court denied the motion and this timely appeal followed.

      Horne’s Statement of the Question Involved reads:

        Did the trial court ignore Mr. Horne’s mitigating evidence and
        fail to consider and apply all relevant sentencing criteria,
        including the protection of the public, the gravity of the
        offense, and especially Mr. Horne’s character and
        rehabilitative needs, as required under 42 Pa.C.S.[A.] §
        9721(b) (sentencing generally; general standards), thus
        making Mr. Horne’s sentence excessive and unreasonable?
        Did the trial court deny Mr. Horne his constitutional right to
        a jury trial and the presumption of innocence by considering
        inadmissible hearsay evidence of unrelated shootings when
        crafting Mr. Horne’s statutory-maximum sentence, in
        contravention of the fundamental norms of sentencing?

Horne’s Br. at 4.

      Horne challenges discretionary aspects of his sentence. As such, before

addressing the merits of his issues, we must determine whether:

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      (1) The appellant preserved the issue either by raising it at the
      time of sentencing or in a post sentence motion; (2) the appellant
      filed a timely notice of appeal; (3) the appellant set forth a concise
      statement of reasons relied upon for the allowance of his appeal
      pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
      substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa.Super. 2013) (quoting

Commonwealth v. Stein, 39 A.3d 365, 370 (Pa.Super. 2012)).

      Although Horne’s appeal is timely and his brief includes a Pa.R.A.P.

2119(f) statement, he has not preserved all the issues he seeks to argue in

this Court. His Rule 2119(f) statement identifies three issues. He first contends

that the trial court “failed to consider his evidence in mitigation, his

rehabilitative needs, and protection of the public. . . .” Horne’s Br. at 27. He

also argues that the “aggregate, statutory-maximum sentence, which

consisted   of   multiple   consecutively-run     sentences,    was    manifestly

unreasonable and unduly harsh. . . .” Id. Last, he argues that in sentencing

him, “the Trial Court improperly considered unverified, inadmissible hearsay

evidence alleging that Mr. Horne was connected with three shootings Mr.

Horne had never been charged with or convicted of. . . .” Id.

      Horne properly preserved the first two issues and the two questions

together raise a substantial question. See Commonwealth v. Swope, 123

A.3d 333, 339 (Pa.Super. 2015) (stating that a claim of an excessive sentence

combined with claim that court failed to consider mitigating factors raises a

substantial question). However, he waived his third issue by failing to raise

his hearsay issue before the trial court. See Pa.R.A.P. 302(a).



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      Turning to the merits of Horne’s preserved issues, Horne maintains that

the trial court failed to consider his rehabilitative needs as well as his

mitigating factors. The record before us belies this argument. The court at

sentencing reviewed the Pre-Sentence Investigation report (PSI) and heard

extensive testimony from the brother of Horne’s girlfriend, Horne’s brother,

mother, and grandmother, and a local pastor. See N.T., Trial at 51-76; see

also N.T., Sentencing at 3 (court referencing PSI). The court was thus well

aware of Horne’s mitigating evidence and his rehabilitative needs, considered

it, and gave it the weight it deemed appropriate. See TCO at 6-7;

Commonwealth v. Moury, 992 A.2d 162, 175 (Pa.Super. 2010) (stating

presumption that court is aware of and weighs considerations included in PSI

including mitigating factors). This claim fails.

      Next, Horne maintains that “because the record is devoid of any

thoughtful consideration of the mitigating facts presented at sentencing, Mr.

Horne’s   consecutive     statutory-maximum        sentences   were   manifestly

unreasonable.” Horne’s Br. at 37. As above, the court is presumed to have

considered the evidence before it, and nothing in the record suggests

otherwise. We affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2019




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